Trademark Law – Its Past and Present

This paper has been prepared by
By S. K. Inthu, Advocate, Chennai

1. Introduction
1.1. Trademark has a substantial role in the competitive market and has a remarkable intellectual value which needs to be protected. The recognition and protection of intellectual property rights is considered to be of recent origin. But the instances given in this Article would trace its Origin right from the period of the Ancient Classical Greek and The Imperial Rome. During the course of time, the nations all over the world have recognized the importance of intellectual property rights due to its immense economic values and have enacted laws towards protecting them. The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), is a milestone in the history of the Trade Mark Law as it has influenced the law on trade mark in almost all nations of the world including India. It is a significant international instrument, zealously aiming to protect Intellectual Property Rights across the globe to reward one’s creativity and inventiveness. The member nations to this Agreement have enacted laws in tune with the provisions of the Agreement on TRIPS. India already has sufficient enactments on this area.

1.2. A trademark is a distinctive sign or indicator of some kind which is used by an individual, business organization or other legal entity to uniquely identify the source of its products and/or services to consumers, and to distinguish its products or services from those of other entities. It typically comprises a name, word, phrase, logo, symbol, design, image, or a combination of these elements. The meaning and scope of the term Trade Mark has been explained in the case of Firm Koonerji Bechari Lal vs. Firm Adam Hazi Pir Mohammed as follows:
“a Trade Mark is some symbol consisting in general of a picture label word or words which is applied or attached to goods of a trader so as to
distinguish them as his from similar goods of other traders and to identify them as his goods or as those of his successors in the business which they are produced or put forward for sale.”
It is also used informally to refer to any distinguishing attribute by which an individual is readily identified, such as the well known characteristics of celebrities. When a trademark is used in relation to services rather than products, it may sometimes be called a service mark, particularly in the United States.
1.3. To put it simply, Trade Mark is a property right and law protects that right. The owner of a registered trademark may commence legal proceedings for trademark infringement to prevent unauthorized use of that trademark. However, registration is not required. The owner of a common law trademark may also file suit, but an unregistered mark may be protectable only within the geographical area within which it has been used or in geographical areas into which it may be reasonably expected to expand.
2. Why Trade Mark?
2.1. The use of a trademark indicates that the maker or dealer believes that the quality of the goods will enhance his or her standing or goodwill, and a known trademark indicates to a buyer the reputation that is staked on the goods. Registration of a trademark is necessary in some countries to give exclusive right to it. In the United States, Canada, and Great Britain, the sufficient use of a trademark not previously used establishes exclusive right to it, but registration is provided as an aid in defending that right. People rely on trademarks to make informed decisions about the products they buy. A trademark acts as a guarantee of the quality and origin of a particular good. A competing manufacturer may not use another company's trademark. The owner of a trademark may challenge any use of the mark that infringes upon the owner's rights.
3. How to indicate the presence of Trade mark?
3.1. The presence of trademark protection for the name or logo of a company or product is often indicated by the small symbol of an R in a circle placed near the trademark. The R means that the mark is a registered trademark and is a warning that the law prevents unauthorized use of it. A party may indicate that it is claiming rights to a particular mark by displaying a TM rather than an R symbol. Marks bearing the TM symbol are not registered, but the presence of the symbol shows the intent to register.
4. History and Development of Trademark Law
4.1. According to U.S. History Encyclopedia Merchants and artisans have used trademarks for centuries; the medieval trademark not only allowed artisans to take credit for their work but also permitted guilds to control quality. English common law (the law of court- decisions rather than statutes) protected trademarks beginning in the seventeenth century.
4.2. The trade of goods came into practice long ago, and the use of trademarks is thought to have evolved from that. The origin of trademarks can be traced back as far as the beginning of the circulation of goods. The history of marks is nearly as old as the histories of mankind and religion. Scientists have come across excavated artifacts from places such as ancient Egypt with various symbols carved thereon for religious and superstitious reasons. "Potters marks" appeared in relics left from the Greek and Roman periods and were used to identify the maker (potter) of a particular vessel. Among those who specialize in researching the cultural heritage of marks, the studies surrounding "potters marks" are famous. It would be difficult, however, to say that these marks are trademarks in the sense of the modern meaning.
4.3. Over time, different methods of identification and distinction developed. Loved ones and pets were given names. "Proprietary marks" (in the form of a name or symbol) were affixed to goods to enable one person to distinguish their own possessions from those of others. Craftsmen applied their names, unique drawings, or simple inscriptions to identify goods they created. Even though these marks surely helped in distinguishing goods, it is difficult to say that these marks were trademarks with distinctiveness in the modern sense of the word.
4.4. Symbols on goods used in ancient Rome and other countries near the Mediterranean Sea had similar characteristics to the trademarks of today. Because this ancient region is considered to be the first to actively circulate goods, it is widely thought that trademarks evolved in response to the emergence of a society in which goods circulate in commerce. However, even in those days, a trademark system based on property rights did not yet exist.
4.5. Around the 10th century, a mark called a "merchants mark" appeared, and symbols among traders and merchants increased significantly. These marks, which can be considered one kind of "proprietary mark," essentially were used to prove ownership rights of goods whose owners were missing due to shipwrecks, pirates, and other disasters. Even now, in every part of the world, horses, sheep, and other animals are still branded with a mark identifying the owner. In Japan, a symbol is affixed to lumber that is tied onto a raft and sent down a river to its mouth. These types of marks are reminiscent of the "merchant's mark" of the past.
4.6. In guilds of the middle ages, craftsmen and merchants affixed marks to goods in order to distinguish their work from the makers of low quality goods and to maintain trust in the guilds. These marks, known as "production marks," served to punish the manufacturers of low quality goods for not meeting the guild's standards and to maintain monopolies by the guild's members.
4.7. These production marks helped consumers to identify and assign responsibility for inferior products, such as, goods short in weight, goods comprised of poor quality materials, and goods made with inferior craftsmanship. Because these marks were affixed out of compulsion or obligation, rather than one's own self-interest, they also became known as "police marks" or "responsibility marks".
4.8. They acted not only to distinguish between sources of goods, but to serve as an indicator of quality as well. While modern marks work to ensure the quality and superiority of certain goods, the obligatory marks served to uncover defective goods. "Responsibility marks" were more burdensome than real property, and could not be changed easily once the mark had been adopted.
4.9 Furthermore, it is thought that this type of mark did no more than simply guarantee minimum quality. Finally, these symbols were different from modern marks in that they emerged to benefit the guilds, and were not for the benefit of the production mark owner.
4.10 From the Middle Ages, through "police marks" and "responsibility marks," modern trademarks slowly developed as the Industrial Revolution sparked the advent of what is now modern-day capitalism. Gradually, the guild systems disintegrated, and free business was established. Marks began to actively identify the source of goods rather than obligatory guild membership. About this time, special criminal laws protecting trademarks were also developed out of early forgery, counterfeiting, and fraud laws. Civil protection was gradually and systematically established against those who would use another's mark without permission ("infringers"). Imitations of a trademark wrong both the owner of the trademark and the buyer, who is misled as to the source of goods, and such infringements of a trademark are punishable by law. Service marks, which are used on services (such as insurance or brokerages) rather than on products, are also covered by trademark laws’.
4.11. 701 A.D. In Japan Taihouritsurei set forth laws on indications. Indications were a system designed to regulate and prohibit the mass production of articles of inferior quality. Thus, the character of an indication was far from that of a modern-day trademark. Literature tells us that the fraudulent use of trademarks has existed since olden times. It is documented that there was a punishment for trademark infringement in the Muromachi period and also that there were regulations on trademarks within the trade associations Za and Kabunakama.
4.12. 1772, in USA George Washington, sought to protect the mark "G. Washington" for use on flour. The purpose of trademark law was to prevent consumer deception as to source. This meant that trademarks were local and goods-specific, as was most trade at the time. A trademark of "Washington's" for flour in Virginia would not extend to "Washington's" on silverware or to "Washington's," even on flour, outside Virginia’.
4.13. 1803, In France, the "Factory, Manufacture and Workplace Act" (Article 16) is internationally noted for establishing a system which made it a crime to pass off another's seal as one's own. Further, the Criminal Acts of 1810 (Article 142) and 1824 (Article 433) made it a punishable crime to abuse the name of others or wrongly use the names of production areas. Even this system was not nearly as advanced as the comprehensive trademark legal structure as we see today.
4.14. 1874, In Germany The Trademark Protection Law (Gesetz der Markenschutz), is considered to be the first German trademark law. It put into place a non- substantive trademark registration and examination system. A later statute, the Trademark Protection Law (Gesetz zum Schutz der Warenbezeichungen) of May 12,1894, followed principles of an examination-based system that was substantively based Germany's 1936 amendment put the law in the form of the modern trademark law (Warenzeichengesetz);
4.15. 1862, In England "The Merchandise Marks Act," focused on provisions dealing with deceptive indications, The " ‘Trade Mark’ Registration Act" was also passed in 1875. The 1905 Act was amended in 1919 and 1937, until a new Act was passed in 1938. This Act fundamentally changed the system in many ways, permitting registration based on intent-to-use, creating an examination-based process, and creating an application publication system. It equipped the English system with advances that surpassed the trademark law of France at that time.
5. Definitions of Trade Mark from dictionaries:
5.1. The Computer Encyclopedia - A trademark is a brand identification for a product or service, the latter technically called a "service mark." The mark can be written text, text in a particular stylized form or a graphic symbol.
5.2. The Investment Dictionary - ‘A symbol, word, phrase, logo, or combination of these that legally distinguishes one company's product from any others. Any infringement on a trademark is illegal and therefore grounds for the company owning the trademark to sue the infringing party’.
5.3. The Financial & Investment Dictionary - ‘Distinctive name, symbol, motto, or emblem that identifies a product, service, or firm. In the United States, trademark rights is the right to prevent competitors from using similar marks in selling or advertising - arise out of use; that is, registration is not essential to establish the legal existence of a mark …’.
5.4. The Marketing Dictionary defines Trade Mark as, ‘Identification mark, as defined by the Lanham Trade-Mark Act of 1946 of United States. "names, symbols, titles, designations, slogans, character names, and distinctive features emphasized in advertising . . . " used by manufacturers, advertisers, and merchants to identify products and to distinguish them from competitive products.
5.5. The Business Dictionary - ‘Insignia or logo that distinguishes one maker's goods from all others; any mark, word, letter, number, design, picture, or combination thereof in any form that is adopted and used by a person to denominate goods that he makes, is affixed to the goods, and is neither a common nor generic name for the goods nor a picture of them, nor is merely descriptive of the goods… ’
5.6. Britannica Concise Encyclopedia defines Trade Mark as, ‘Mark used by a manufacturer or merchant to identify the origin or ownership of goods and to distinguish them from others. Trademarks may be words or groups of words, letters, numerals, devices, names, the shape or other presentation of products or their packages, or combinations of colours.
5.7. US History Encyclopedia - ‘Trademarks are words or symbols used on goods to indicate source.
5.8. Columbia Encyclopedia defines Trade Mark as, ‘trademark, distinctive mark placed on or attached to goods by a manufacturer or dealer to identify them as made or sold by that particular firm or person.
5.9. Law Encyclopedia defines Trade Mark as, ‘Distinctive symbols of authenticity through which the products of particular manufacturers or the salable commodities of particular merchants can be distinguished from those of others’.

6. The International Nature of Trademark Law
6.1. Even though trademarks are regulated by each country independently, because of the fact that goods travel beyond country borderlines and bear trademarks, trademark law has international implications. The Paris Convention is the prime International Convention in the field of Intellectual Property Rights.
7. Paris Convention (relating to the protection of industrial property), also known as Industrial Property Rights Protection Alliance Treaty
7.1. This Convention was concluded in the year 1883 and its interpretation was supplemented in Madrid. It further underwent several amendments. In 1900-Brussels; 1911- Washington, D.C.; 1925 - The Hague; 1934-London; 1958 - Lisbon and 1967 - Stockholm. It was revised in 1979 to the form as we know it today. There are 151 member states as of January 15, 1999, demonstrating that most major countries in the world have joined the treaty. However, because the Paris Convention requires a super majority, it has a tendency to lag behind current developments.
7.2. The following is a list of the major relevant articles of the treaty:
7.2.1. member states protect the trademark rights and other industrial property rights of other member states ;
7.2.2. each member state must maintain the fundamental principle that citizens of other member states receive the same protection as its own citizens; and
7.2.3. member states must recognize the assertion of priority rights.
7.3. The articles that are particularly relevant to the trademark law include:
7.3.1. remedies for cases in which registered trademarks are not used, including sanctions
7.3.2. the independent status of the trademark law ;
7.3.3. protection of well-known trademarks;
7.3.4. adjustment regulations on the transfer of trademark rights;
7.3.5. regulations on trademarks registered in a foreign country;
7.3.6. protection of service marks;
7.3.7. regulations controlling applications for trademark registration made by an agent, among others, without permission of the applicant;
7.3.8. removal of trademark registration limitations based on the disposition of the goods;
7.3.9. protection of collective trademarks;
7.3.10. control of the importation of counterfeit goods;
7.3.11. control of fraudulent indications of country origin;
7.3.12. prohibition of acts of unfair competition;
7.3.13. legal measures to prevent counterfeit goods and others; and
7.3.14. temporary protection of goods exhibited in international expos.
7.4 The Trademark Registration Treaty or "TRT," concluded in the year 1973 under the auspice of the World Intellectual Property Organization (WIPO) [established by the WIPO Convention in 1967] is more up-to-date. This Treaty became effective in February 1980. The Trademark Law Treaty ("TLT") of 1994, however, is even more current
8. Special Agreements
8.1. The major special agreements reached include:
8.1.a. The Madrid Agreement for the prevention of false or misleading indications of country origin.
8.1.b. The Madrid Agreement on international registration of production marks or trademarks.
8.1.c. An Agreement on international classification of goods and services for trademark registration.
8.1.d. The Lisbon Agreement on the protection of the name of the country of production and its international registration.
8.1.e. Trademark Registration Treaty ("TRT").
8.1.f. The Trademark Law Treaty (also called the Trademark Law Harmonization Treaty) of 1994, effective from August 1, 1996.
8.2. The International Application under the TRT becomes effective internationally and domestically as of the application date at the International Bureau, and is treated as a domestic application in any designated member state. The International Bureau issues an International Registration and publishes the mark based only on an examination of formality, and informs each designated state. Subsequently, the designated states conducts substantive examination.
8.3. The international registration becomes effective 15 months after its public announcement, unless the national government office of a designated country issues a notice of refusal of registration to the International Bureau within the 15 months from the date of publication. The registration date of the domestic trademark becomes the international application filing date.
8.5. The Trademark Law Treaty (TLT) applies the regulations of the Paris Convention to the non-member states of the Convention. Article 15 of the TLT states that its member states must observe the regulations concerning marks in the Paris Convention, thus making it a duty for its member states. The amendment added phrases such as "member states of the TLT" into the regulations in the trademark law as well as in the Unfair Competition Prevention Law.
9. Agreements among Multiple States
9.1 In addition to the International Treaties and Agreements discussed previously, there are other accords reached between two or more countries. An example is the Pan-American Treaty of 1929. Also, the European Economic Community (EEC) contemplated a unified trademark law for many years. The European Trademark Law became effective on March 15, 1994, and a European Trademark Office was established in Alicante, Spain.
9.2. Other regional trademark agreements include the Benelux Unified Trademark Law, which was signed in 1962 and went into force on January 1, 1972. This law is applied equally in Belgium, The Netherlands and Luxembourg. There is a proposal, as set forth in the Model Trademark Law of 1956, created by an attorney, Dr. Stefan P. Ladas, for a unified global trademark law, although this is only a vision for the distant future. It was drafted in the International Chamber of Commerce and remains a proposal.
10.1. Comparison of trademark treaties among multiple countries
10.2. There is a close relationship between international treaties and the Japanese Trademark Law, more so than in other areas of law, other than industrial property right laws. However, the relationship is not close enough to call it a unified trademark treaty, in which other countries would apply Japan's trademark laws.
10.3. In the European Trademark Law, the actual body of law in each geographic area is formed by the actual international law as to trademarks registered there under. Under the European Trademark Law, the rights acquired by the trademark registration of the international treaty coexist with the domestic trademark rights, which were previously obtained under the member-state law. Therefore, the treaty is not a completely unified trademark law.
10.4. On the other hand, the Trademark Registration Treaty (TRT) does not grant an independent trademark right. The TRT eases the trademark registration process and is a treaty that the member states merely join for cooperation. The attained trademark right is still under the auspices of each member state and is independent from the trademark rights of other member states. Internationally, trademark registration is facilitated by the World Intellectual Property Organization, under the Madrid Protocol.
11. Types of protected mark
11.1. Trademark law protects marks. Marks can be words, names, symbols or devices. They come in several classes .
11.1.1. Trademark Strictly speaking, is a mark that distinguishes one person's goods from others'. In practice, the word "trademark" is often used to refer to any class of mark that is protected under trademark law
11.1.2. Service mark is similar to a trademark, except that it is used to distinguish one person's services from others'. Service marks can be registered in the same manner as trademarks and are denoted by the ® symbol once they are registered on the Principal or Supplemental Registers. If they are not registered, they often carry a TM symbol if it is a Trade Mark and SM symbol if it is a service mark.
11.1.3. Trade name is a mark used to identify a business, as opposed to a good or service. The Lanham Act does not allow trade names to be registered unless they also function as trademarks or service marks by identifying the source of a good or service. However, many states allow trade names to be registered and protected under state law.
11.1.4. Certification mark is a mark used to certify a good in some way, regardless of its specific source. Seals of approval (e.g. the Good Housekeeping Seal of Approval) and marks of origin (e.g. Roquefort cheese) are examples of certification marks. A certification mark is held by an organization and is protected under trademark law so long as the holder establishes a standard for awarding the mark and polices that standard effectively.
11.1.5. Collective mark is a mark held by a group for the use of its members. Examples include union stamps and franchise marks. Collective marks are treated like regular trademarks and service marks under the Lanham Act.
11.1.6. Trade dress refers to the distinctive packaging of a product. One example of trade dress is the decor of a restaurant chain. Trade dress is protected if it is inherently distinctive.
11.1.7. Product configuration refers to the distinctive design and shape of a product. The best-known example is the glass Coca-Cola bottle. A product configuration must have secondary meaning to be protected, regardless of whether it is inherently distinctive or not. Secondary meaning means that the appearance of the product should indicate its source to a consumer
(Both trade dress and product configuration can be registered as trademarks, but they are more often protected without registration as a "false designation of origin". They pose special problems in trademark law because of their non-verbal nature. Words are easy to protect: more abstract designs are not.)
12. Eligibility for Registration.
12.1. A trademark may be eligible for registration, or registrable, if amongst other things it performs the essential trademark function, and has distinctive character. Registrability can be understood as a continuum, with "inherently distinctive" marks at one end, "generic" and "descriptive" marks with no distinctive character at the other end, and "suggestive" and "arbitrary" marks lying between these two points. A mark must satisfy both sections to become registered.
13. The spectrum of distinctiveness
13.1. In trademark litigation, courts are most frequently asked to parse between suggestive and descriptive marks on the one hand, and between descriptive and generic marks on the other. This is because suggestive marks, like fanciful and arbitrary marks, are presumed to be entitled to trademark protection, while descriptive marks are entitled to protection if they have become known as representing the producer of the goods, and generic marks can never receive protection.
13.2. Fanciful mark has no meaning other than its meaning as a trademark. Examples include Xerox copiers, Lego bricks and Verizon phones.
13.3. Arbitrary marks have a separate meaning, but that meaning has nothing to do with their use as a trademark. Examples include Apple computers, Diesel jeans and Ivory soap.
13.4. Suggestive marks suggest a characteristic of a good or service without actually describing that characteristic. Examples include Coppertone sunblock, Earthlink internet service and jetblue airline service.
13.4. Arbitrary, fanciful and suggestive marks receive highly similar treatment under the law. They are the strongest types of mark in that their holders do not need to prove a secondary meaning in order to protect the mark. Because there is no reason to associate Apple with computers, outside of the popularity of computers made by Apple Computer, third parties have few legitimate reasons to use the name "Apple" on their computers.
13.5. Descriptive marks. A "descriptive" mark is one that identifies a characteristic of the article or service it marks. Examples include American Airlines (a geographic mark) and Dell Computer (a surname mark). Descriptive marks cannot be registered without proof that the mark has a secondary meaning in the eye of the consumer public.
13.6. Even if a descriptive mark has a secondary meaning, its descriptive nature makes it possible to avoid trademark infringement liability through a fair use defense. A person could, for instance, use "American Airlines" in a commercial context to refer to airlines from America, so long as they were not using the term in its trademark sense.
13.7. Generic marks like "laptop computer," cannot receive trademark protection even if they have a secondary meaning. The rule against generic trademarks is particularly important for holders of famous marks, because their marks may lose protection if they become common nouns or adjectives in the public eye. Formerly-trademarked words like "aspirin" and "cellophane" have lost their protection due to genericide.
13.8. Non-verbal marks A mark need not be a word or phrase. Besides trade dress and product configuration, discussed above, trademarks can also be found in sounds (e.g. the NBC chimes), colors, fragrances, and other distinctive features of a product. The most important criteria in determining their trademarkability is secondary meaning (whether the feature denotes origin to consumers) and whether the feature is functional. Functional features are not trademarkable: they must be protected under patent law if they are to be protected.
14. Priority Right
14.1. Generally speaking, the owner of a mark is the person who is first to use that mark in commerce. This is known as the race to the marketplace test. In the case of unregistered marks, protection only extends to the areas where marked products are sold or advertised, where their reputation is established, or where the owner is reasonably expected to reach in the normal expansion of their business. Registered marks automatically receive nationwide protection regardless of where they are used.
14.2. If two people use the same mark in the same region, the right to use the mark will be given to the first person to use the mark in that region. If one of the marks is registered, the unregistered mark will only prevail if it was in use before the application for the registered mark was filed, and the unregistered mark will only prevail in the area(s) where it was in use.
14.3. Technically speaking a Priority Right or Right of Priority is a time-limited Right, triggered by the first filing of an application for a patent, an industrial design or a trademark respectively. The priority right belongs to the applicant or his successor in title and allows him to file a subsequent application in another country for the same invention, design or trademark and benefit, for this subsequent application, from the date of filing of the first application for the examination of certain requirements. When filing the subsequent application, the applicant must "claim the priority" of the first application in order to make use of the Right of Priority.
14.4. The Period of Priority, i.e. the period during which the priority right exists, is usually 6 months for industrial designs and trademarks and 12 months for patents and utility models. The period of priority is often referred to as the "priority year" for patents and utility models.
15. Infringement
15.1. Infringement of a Trademark is a violation of the Exclusive Rights attached to it without the authorization of its owner or any licensees (provided that such authorization was within the scope of the license). Infringement may occur when one party, the "infringer", uses a trademark which is identical or confusingly similar to a trademark owned by another party, in relation to products or services which are identical or similar to the products or services which the registration covers. An owner of a trademark may commence legal proceedings against a party which infringes its registration.
16. Confusion
16.1. Confusing similarity is a test used during the examination process to determine whether a trademark conflicts with another, earlier mark, and also in trademark infringement proceedings to determine whether the use of a mark infringes a registered trade mark. In many jurisdictions this test has been superseded by the concepts of similarity and likelihood of confusion, due to the harmonizing effects of the Agreement on Trade-Related Aspects of Intellectual Property Rights.
16.2. Where mark X is not identical to a registered trademark, the use of mark X may still amount to an infringement if it is "confusingly similar" to the registered trademark. Mark X may share elements of spelling or style that would lead a reasonable observer to believe the trademarks were related. For example, in the computer industry, Microsoft has become such a well known trade name and trade mark that other businesses in the industry may want to use the term "micro" or "soft" in their names. As Microsoft generally does not hold exclusive rights in these terms, it would need to establish that any trade names or trademarks which include these terms is confusingly similar to "Microsoft". The reputation attaching to a trademark is also significant, such that "Microsafe" or "Micro Software", although clearly not identical, could potentially be confusingly similar and amount to an infringement.
16.3. In addition, the style of a trade mark, such as a logo or font, can become relevant. For example, Microsoft products are distinguished in the marketplace by a consistent font. Competitors may not use the same font on their product, particularly when using a name which would not be confusingly similar except for the use of the font. For example, a brand called "Microsystems" would most likely not be confused with Microsoft. However if Microsystems used the same font as Microsoft, it would be confusingly similar. Some styles, like the script used on Coca-Cola(TM) products, are so well known that even a completely different name in a similar script could be held to be confusingly similar. However, courts can also take judicial notice that an infringing mark is confusingly similar if it is obvious to even a casual observer.
16.2. In an action for Infringement, the basic inquiry generally involves a same set of questions. They are
i. How strong is the mark being defended?
ii. How similar are the products in question
iii. How similar are the marks in question
iv. Have consumers actually been confused
v. Which marketing channels have been used
vi. How likely is the consumer to exercise care when purchasing the products in question
vii. What was the defendant's intent in selecting the mark
viii. How likely are the product lines to expand
16.3. The forms of confusion between Trade Marks are as follows:
16.3.1. Confusion between related products: If one product is offered under a mark similar or identical to another, and the products would be confused by the buying public if sold under the same mark, an infringement can be found. Examples from actual infringement cases include Slickcraft and Sleekcraft boats, Bonamine and Dramamine medications, Pledge and Promise cleaners, and Duron and Durox paints.
16.3.2. Confusion as to source. Confusion can also be found when the same or similar mark is applied to different types of goods. One early case, involving Borden milk and Borden ice cream, was deemed to be non-infringing in 1912; in more recent years, such cases have routinely led to findings of infringement.
16.3.3. Confusion as to sponsorship. Even where consumers are unlikely to be confused as to source, they may be confused as to sponsorship. Team logo merchandise is a common example; consumers may expect that they are supporting the New York Yankees by purchasing a Yankees cap.
16.3.4. Initial interest confusion. Sometimes, famous marks are used to lure consumers to different businesses. "Cybersquatting" by registering a well-known trademark as a domain name is one well-known example. Another is the use of meta tags to fool search engines: a little-known adult Web site may attempt to attract visitors by showing up in web searches for more well-known adult entertainment franchises. Both activities can be considered trademark infringement by confusion Post-sale confusion. Post-sale confusion is often used to find infringement in counterfeit goods, such as fake watches and handbags. While the purchaser is likely to understand that they are buying a counterfeit product, the aim is to confuse others into thinking the product comes from a different source.
16.3.5. Reverse confusion. Although confusion cases generally involve a little-known business using a well-known mark, confusion can also be found when a well-known business uses a little-known mark.
17. Dilution.
17.1. Trademark infringement can also be found in the absence of any confusion at all. Many trademarks are deemed to have a distinctive quality, and any third-party use that diminishes this distinctiveness is considered to be dilution, which is an independent cause of action from traditional infringement. Traditional types of distinction include blurring, in which the diluter lessens the ability of the mark to uniquely identify one source of goods or services, and to tarnish the quality, in which the diluter associates the mark with scandalous or obscene material, thus attacking the good character of the mark or its owner.
17.2. The textbook case of dilution is Eastman Photographic Materials v. Kodak Cycle, 15 R.P.C. 105 (Eng. 1898), in which the maker of Kodak cameras brought suit against a company producing Kodak bicycles. There was little chance of cameras being confused with bicycles: the risk was removing the Kodak name's association with cameras.
17.3. The Federal Trademark Dilution Act of 1995 added a dilution statute to the Lanham Act. Dilution can be found whenever a "famous mark" is used by another, "if such use begins after the mark has become famous and causes dilution of the distinctive quality of the mark." 15 U.S.C. 1125(c). However, a recent law has made significant changes to the Federal dilution statute.
18. Contributory infringement.
18.1. Trademark law has a contributory infringement doctrine similar to those under patent law and copyright law. Unlike its sister doctrines, however, contributory infringement of trademarks is not a very well-developed doctrine. It has come up in a few contexts, including cybersquatting liability and liability for landlords whose tenants sell counterfeit goods.
19. Defenses to infringement
19.1. Genericide - Many trademarks have been invalidated because they have lapsed from fanciful, arbitrary, suggestive or descriptive status to generic status. Genericide is a defense to trademark infringement: the use of a trademark that has become generic over time is not infringement. Examples include i) Aspirin; - Bayer Co. v. United Drug Co., 272 F. 505 (S.D.N.Y. 1921), ii) Cellophane - DuPont Cellophane Co. v. Waxed Products Co., 85 F.2d 75 (2d Cir. 1936), iv) shredded wheat; Kellogg Co. v. National Biscuit Co., 305 U.S. 111 (1938), v) thermos; King-Seeley Thermos Co. v. Aladdin Industries, 321 F.2d 577 (2d Cir. 1973), vi) Murphy bed; Murphy Bed Door Co. v. Interior Sleep Systems, 874 F.2d 95 (2d Cir. 1989)
19.2. Functionality - There is still a sharp divide between patent and trademark law, illustrated by the doctrine that functional marks cannot be protected as trademarks. As stated above, functionality is most common when defending claims for infringement of trade dress and product configuration.
19.3. Abandonment - Under the Lanham Act as amended in 1994, a mark is deemed "abandoned" "when its use has been discontinued with intent not to resume such use." Nonuse for three consecutive years is considered prima facie evidence of abandonment. 15 U.S.C. § 1127
19.4. Non-trademark use - Use of a mark is only infringing if the mark is used as a mark. For instance, mentioning a mark in an article is generally not infringement. Using a mark as the basis of a song is generally not infringement ("Barbie Girl"; see Mattel v. MCA Records, 296 F.3d 894 (9th Cir. 2002)). Likewise, mentioning a mark in the title of a work, as in The Lexus and the Olive Tree or The Devil Wears Prada, is generally not infringement. However, using Star Trek in the title of an unauthorized book about Star Trek would likely infringe the mark, since the mark is used on other books authorized by its holder.
20. Remedies
20.1. Injunction is a standard remedy for trademark infringement. The usual injunction is to halt production and sale of infringing goods and services. In some cases, the court might also award an injunction for corrective advertising, which forces the defendant to pay for an amount of advertising necessary to reverse the damage to the plaintiff's mark.
20.2. Damages for infringement is awarded based on the factors such as i) the Defendant's profits, ii) Damages sustained by the Plaintiff and iii) cost of bringing the lawsuit - 15U.S.C. § 1117. The Plaintiff is responsible for proving the defendant's sales under point i, as well as their own damages and costs under point ii and point iii. The Defendant is responsible for proving their costs to reach a final figure for Defendant's profits
21. Trademark Litigation – Development And Trends:
21.1. Developments in the U.S. Supreme Court - regarding relationship between fair use and likelihood of confusion
21.1.1. In KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 125 S.Ct. 542 (2004) (Souter, J.) The Supreme Court held that, in determining whether a defendant has made fair use of a word or phrase claimed by another party to be a trademark (in this case MICROCOLOR for permanent makeup), the defendant need not prove a lack of likelihood of confusion. It is appropriate to consider some likelihood of confusion factors, however, because they also bear on fair use. For example, intent to adopt another’s mark would suggest that the defendant has not made a good faith fair use. In addition, actual confusion suggests that the defendant may not be using the designation in a descriptive manner, but rather as a trademark.
21.1.2. Moseley v. V. Secret Catalogue, Inc., 537 US 418 (2003)(Stevens, J.) The Supreme Court held that a finding of dilution required a showing of actual dilution supported by evidence of injury to economic value of the mark, such as diminished capacity of the mark to identify and distinguish goods or services sold in stores or catalogs. While mere customer association between similar but not identical marks is not enough to support a finding of dilution, actual loss of sales or profits is likewise not required. The Court noted that this interpretation of federal law is in opposition to many state statutes that require only a likelihood of dilution.
21.1.3. TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U.S. 23 (2001) (Kennedy, J.) The Supreme Court held that the existence of a prior patent on features later claimed to be protected by trade dress may have ‘vital significance’ in the trade dress claim because it lends strong evidence of functionality. The Court stated that where the expired patent claimed the same features, the entity that seeks trade dress protection carries the burden of proof to show that the feature is not functional.
21.1.4. Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 US 205 (2000)(Scalia, J.) The Supreme Court held that product design is entitled to unregistered trade dress protection where the product design is distinctive and has acquired secondary meaning because design itself is not inherently distinctive.
21.2. Developments in The Circuit Courts - Likelihood of confusion
21.2.1 Beacon Mut. Ins. Co. v. OneBeacon Ins. Group, 376 F.3d 8 (1stCir. 2004) The First Circuit reversed a grant of summary judgment on the grounds that, even though the plaintiff could not prove lost sales, the infringement caused actual confusion among those in a position to influence sales and others, and therefore harmed the plaintiff’s goodwill and reputation. The evidence showed that the parties’ respective use of the ONEBEACON and BEACON MUTUAL marks for worker compensation insurance services caused misdirected communications among injured workers, health care workers, third party insurers, and attorneys. Such confusion, although not directly resulting in lost sales, was found to be commercially relevant and actionable by the First Circuit.
21.2.2. Citizens Financial Group Inc. v. Citizens Nat’l Bank of Evans City,383 F.3d 110 (3d Cir. 2004) In this reverse confusion case involving the CITIZENS mark, the Third Circuit held that the issue was whether confusion was likely in the senior user’s market, not in the larger market of the junior user. Thus, survey evidence must correspond to the senior user’s geographic area. The court also found that the district court erred in molding the verdict to allow the junior user the right to use the mark in the senior user’s market, and directed that an injunction be entered.
21.2.3. Kos Pharmaceuticals Inc. v. Andrx Corp., 369 F.3d 700 (3d Cir.2004) The Third Circuit reversed the district court’s determination that the owner of the ADVICOR mark for a prescription anticholesterol drug was not entitled to a preliminary injunction against the owner of ALTOCOR mark for similar drugs. The court applied the ten-factor Lapp test for likelihood of confusion, and found that the lower court erred in focusing on the heightened care likely to be exercised by medical professionals, when the Lapp factors otherwise favored the plaintiff and the drugs were marketed to consumers in direct competition with each other.
21.2.4. What-A-Burger of Virginia, Inc. v. Whataburger, Inc. of CorpusChristi, Texas, 357 F.3d 441 (4th Cir. 2004) In reversing the lower court’s findings of laches and acquiescence, the Fourth Circuit noted that there was no likelihood of confusion between the marks (WHATABURGER and WHAT-A-BURGER) because the parties used the marks in distinct geographical markets. Thus, an infringement claim cannot be barred by laches or acquiescence until one party shows a likelihood of entering the other’s territory and thereafter delays in enforcing its rights.
21.2.5. Playboy Enterprises, Inc. v. Netscape Comm. Corp., 354 F.3d 1020(9th Cir. 2004) The Ninth Circuit reversed the district court’s order of summary judgment in favor of Netscape, on the grounds that its practice of “keying” certain search terms (including PLAYBOY) so that banner ads of third parties appear when those terms are entered into a search engine may constitute trademark infringement. The court reaffirmed that initial interest confusion is actionable as trademark infringement, and that the 8-factor Sleekcraft test for likelihood of confusion applies.
21.2.6. Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin MaisonFondée en 1772, 396 F.3d 1369 (Fed. Cir. 2005) The Federal Circuit affirmed the TTAB’s finding that VEUVE ROYALE was confusingly similar to the opposer’s VEUVE- formative marks, stating that the fame of a mark for likelihood of confusion purposes must be measured in relation to the class of customers and potential customers rather than the general public. The court reversed the TTAB’s finding of likelihood of confusion with respect to the opposer’s WIDOW mark, however, on the grounds that consumers would be unlikely to translate VEUVE to WIDOW, and that the doctrine of foreign equivalents therefore did not apply.
21.2.7. Playtex Products Inc. v. Georgia Pacific Corp., 390 F.3d 158 (2dCir. 2004) The Second Circuit Court affirmed summary judgment for the defendant on the grounds that QUILTED NORTHERN MOIST ONES was not confusingly similar to WET ONES for pre-moistened towlettes. Applying the eight Polaroid factors used to address likelihood of confusion, the court noted that the marks were dissimilar due to the defendant’s prominent use of its house mark, and that there was no evidence of actual confusion or bad faith.
21.2.8. Surfvivor Media, Inc v. Survivor Productions, --- F.3d ---- (9th Cir.2005) In this reverse confusion case, the owner of the SURFVIVOR mark for beachwear, sunscreen, and surfboards sued the producers of the SURVIVOR television show for infringement. The Ninth Circuit affirmed the entry of summary judgment in favor of defendants because no material issue of fact was raised with respect to likelihood of confusion under the Sleekcraft test. The court found that the two marks were similar in sound but dissimilar in appearance. The court also relied on the absence of evidence of actual confusion, the unrelated nature of the goods, and an absence of intent to infringe.
21.2.9. Team Tires Plus Ltd. v. Tires Plus Inc., 394 F.3d 831 (10th Cir.2005) The Tenth Circuit reversed summary judgment on the grounds that the district court failed to analyze the likelihood of confusion caused by the parties’ respective uses of TIRES PLUS in connection with tire stores and franchising, and erroneously treated the differences in services as dispositive.
21.2.10.Gateway, Inc. v. Companion Products, Inc., 384 F.3d 503 (8th Cir.2004) The Eighth Circuit affirmed the trial court’s judgment that a stuffed black-and-white cow toy that was intended to be wrapped around the body of a computer infringed upon Gateway’s black and white cow print trade dress. The court agreed that Gateway’s trade dress had acquired distinctiveness through secondary meaning and was non-functional, and that there was a likelihood of confusion among an appreciable number of consumers.
21.2.11. Dippin’ Dots, Inc. v. Frosty Bites Distrib., LLC, 369 F.3d 1197(11th Cir. 2004) The Eleventh Circuit affirmed the district court’s grant of summary judgment to the defendant, where the plaintiff’s alleged trade dress (size, color, and shape of flash-frozen ice cream product) was functional and the parties’ logos were so dissimilar as to preclude a likelihood of confusion. The district court found that the plaintiff’s trade dress was functional under both the traditional test and competitive necessity test of functionality, and took judicial notice of the fact that color indicates the flavor of ice cream.
21.2.12. Nissan Motor Co. v. Nissan Computer Corp., 378 F.3d 1002 (9thCir. 2004) The Ninth Circuit affirmed the district court’s application of the dilution statute, even though the defendant began using NISSAN.COM and NISSAN.NET prior to its enactment, to authorize prospective relief. The case was remanded, however, to determine whether NISSAN was famous in 1991 when the defendant first made use of the NISSAN mark in a potentially diluting manner. The court affirmed the district court’s rulings that the defendant infringed the NISSAN mark by offering links to automobile-related websites, but not by advertising its own computer-related services. The appeals court found that the injunction violated the First Amendment, however, to the extent that it prevented the defendant from criticizing Nissan Motors on its web site. That issue was remanded to the district court.
21.2.13. AutoZone, Inc. v. Tandy Corp., 373 F.3d 786 (6th Cir. 2004) The Sixth Circuit affirmed summary judgment against the plaintiff on its dilution claim on the grounds that the marks AUTOZONE and POWERZONE were dissimilar and the plaintiff failed to introduce evidence of actual dilution as required by Moseley. Summary judgment was likewise granted and affirmed on the plaintiff’s infringement claim, in light of the differences between the marks and products, absence of actual confusion, and absence of intent to infringe.
21.2.14. Scott Fetzer Co. v. House of Vacuums Inc., 381 F.3d 477 (5th Cir.2004) In this nominative fair use case, the Fifth Circuit affirmed the district court’s award of summary judgment to an unauthorized dealer of vacuum cleaners, as its use of the KIRBY mark to truthfully advertise that it sold and repaired KIRBY vacuum cleaners and did not create a likelihood of confusion. In finding that the defendant’s use of KIRBY did not suggest affiliation or endorsement, the court considered the five “digits of confusion” set forth in Westchester. The appeals court agreed with the district court that the plaintiff’s survey could not properly be considered, as the universe of respondents was too limited and it employed leading questions.
21.2.15. Mattel Inc. v. Walking Mountain Productions, 353 F.3d 792 (9thCir. 2003) The Ninth Circuit, applying the Rogers test, held that there was no trademark infringement by photographs of a Barbie doll which referred to Barbie in the title on the BARBIE mark where public interest in free and artistic expression greatly outweighs its interest in potential consumer confusion. With respect to claims of misappropriation of trade dress, the court found that the artist’s use of the doll was protected under the fair use doctrine as nominative use under New Kids on the Block because he used the doll to conjure up associations of Mattel and identify his own work at the same time.
21.2.16. Retail Services Inc. v. Freebies Publishing, 364 F.3d 535 (4th Cir.2004) The Fourth Circuit affirmed the district court’s entry of summary judgment on the grounds that FREEBIES was generic for the services at issue. The mark was found generic even though it was the subject of an incontestable federal registration, as incontestable status bars challenges based on descriptiveness but not genericness. The court noted that federal registration of a mark is strong evidence that the mark is not generic, but the registration presumption simply shifts the burden to the party challenging the registered mark to show, by a preponderance of the evidence, that the mark is generic. In determining whether a mark is generic, the court will look to dictionaries, evidence of the owner’s generic use of the mark , and its meaning among the public.
21.2.17. In re Oppedahl & Larson LLP, 373 F.3d 1171 (Fed. Cir. 2004) The Federal Court affirmed the PTO’s refusal to register PATENTS.COM on grounds of descriptiveness. The court held that the addition of a top level domain indicator (“TLD”), such as .com, generally does not serve as a source-indicating function. The court compared TLD’s to the addition of Co. or Corp., which never possess source indicating significance. The court declined to adopt a bright-line rule, however, and noted that some marks resembling domain names (such as TENNIS.NET) may be sufficiently distinctive to be registerable.
21.2.18. DeGidio v. West Group Corp., 355 F.3d 506 (6th Cir. 2004) In this case, the owner of the domain name LAWOFFICES.NET sued West Group for using LAWOFFICES.COM. The SixthCircuit agreed that summary judgment was properly granted to West Group, as the term LAWOFFICES.NET was descriptive and had not obtained secondary meaning. In evaluating descriptiveness, the district court relied on the 6-factor test set forth in McCarthy treatise, and this was relied upon by the appeals court as well.
21.2.19. Donchez v. Coors Brewing Co., 392 F.3d 1211 (10th Cir. 2005) The Tenth Circuit affirmed a grant of summary judgment, holding that the mark BEERMAN was generic for beer vending and related entertainment services. The court noted that a survey showed 75.9% of interviewees recognized the mark as generic, and that even if BEERMAN was descriptive, the plaintiff failed to provide evidence of secondary meaning.
For information on the European Union Trade mark Law kindly visit http://en.wikipedia.org/wiki/Trade_mark_law_of_the_European_Union http://en.wikipedia.org/wiki/Community_Trade_Mark
22. Indian Trade Mark Law

22.1. India too has an ancient history of Using Trademarks. The concept of identifying the source of manufacture by a mark was in practice in ancient days. Signatures of craftsmen have been found engraved on goods sent to Iran from India some 3000 years ago! But trademark gained importance after the industrial revolution when large-scale production and distribution of goods all over the world became possible and publicity through print and audio-visual media became necessary.

22.2.The use of modern trade mark as a distinctive sign to indicate the origin or source of the product, carrying with it an association of high quality, goes back to the eighteenth century England, as in the case of cutlery trade. The real boost to trade mark came with Unilever. It marketed its soap under the brand Sunlight, emphasising not the product as such but the brightness that its use will bring to the clothes cleaned with it. The similarity of the products in the same market has necessitated the marking of goods by a symbol, which could distinguish one’s products from similar goods made by others.

22.3. In 1940 the then British Government of India passed the Trade Marks Act for uniform and systematic registration of trade marks in India, which came into force on June 1, 1942. This was replaced by The Trade and Merchandise Marks Act, 1958, which came into effect from November 25, 1959. In the year 1999, with India joining the World Trade Organisation(WTO), as an original member, it became necessary to effect changes in its Trademark Law in consonance with TRIPS. Hence new Trade Mark Act, 1999, was enacted repealing the Act of 1958.

22.4. The Act of 1999 makes important departures from the Act of 1958 in two important respects:
1. Shape of goods is recognised as a trade mark; and
2. Trade Marks are now granted for services also, besides goods.

22.4.1. Goods is defined as anything which is the subject of trade or manufacture. Service means service of any description offered to users. Banking, finance, insurance, transport, energy supply, construction, hotels, entertainment, information and broadcasting etc. are all examples of areas where services are offered in connection with business, industry or commerce. Definition of service is meant to be all subsuming.
22.5. The Registration of Trade Mark Law is done in Mumbai where the Trade Mark Registry is situated. There are branch offices of the Registry at Calcutta, Delhi and Chennai with separate jurisdictions.

23. What is a trade mark in India?
23.1. A trade mark, as currently recognised in India, is a visual symbol (in the form of a word, a name, a device, a symbol, or a label) which identifies any merchant's or manufacturer's goods or services and distinguishes them from similar goods or services of competitors in the trade. It may include shape of goods, their packaging and combination of colours. Recently, non-visual signs have made a strong claim for recognition as trademark. Smell and sound signs fall under such category though they are not yet recognised in India. Several broadcasting organisations and film producers have specific signature tunes to identify their programs.

23.2. The Act makes a distinction between a trademark and a well-known trademark. If a substantial segment of public associates a trade mark with a particular class of goods and services, and if this trade mark is used for other goods or services, and the public is inclined to associate the new goods/services with the earlier goods/services, then the mark is a well known trade mark. If the proprietor of a trademark is an association of persons, who do not make a partnership within the meaning of the Indian Partnership Act, 1932, the trademark is called a collective mark.

23.3. A special class of trademark is termed as certification trademark. These trademark do not indicate the origin of the goods, but are certified by the proprietor of the mark as conforming to certain characteristics, like quality, ingredients, geographical origin etc. Agmark used for food items in India is a certification mark.
24. A good Trademark as per Indian Law:
24.1. A trade mark should be distinctive. Distinctiveness may be inherent or acquired. An invented word may be inherently distinctive as a trade mark e.g. RIN. Other trade mark may have acquired distinctiveness through usage e.g. TATA, Reliance, Revlon. Most brands acquire distinctiveness through use. A brand may depend on the class of goods e.g. Hawkins and Prestige are two distinctive brands in pressure cookers. If the trade name is a word, it should be short and easy to spell, pronounce and remember; if it is a device it should be expressible in a word.

24.2. The word should be an invented word. Zen, Avon, RIN, Flex are all fine examples. The mark can be denied if it is not considered distinctive. A trade mark consisting of parts of a chain wheel and chain to cover a business in chains and chain wheels is not considered distinctive. However, distinctiveness alone is not sufficient for registration of a trade mark. It may also depend on whether other traders, without any improper motives want to use the same mark.
25. Functions of trade mark
25.1. A trade mark performs five main functions:
(a) To identify the origin or source of goods and services and distinguish them from similar products or services of other enterprises. Trade mark facilitate the choice to be made by the consumer when buying certain products or making use of certain services.
(b) To signify that all goods bearing the same trade mark have a single source.
(c) To signify that all goods bearing the same trade mark are of the same quality. However, it is to be understood that there is no legal obligation on the trade mark owner to maintain a specific quality. In fact the House of Lords, UK has approved application of some trade mark to products of different quality in different countries. The brand owner is free to enhance or reduce the quality of the product. The check against deterioration of quality lies with the consumer. If a brand does not give at least the quality that the consumer associates with it, she will switch on to another brand. However, the brand owner is bound to offer the quality features as declared under trade description.
(d) To serve as the principal instrument in advertising and selling of goods and services.
(e) A fifth function, particularly in the case of registered trade mark, has acquired importance over the years, viz. to protect the trade and business interests of the owner of the brand, as also the goodwill associated with the brand, in case of infringement of trade mark.

26. Registration of Trade Mark
26.1. In India an office of the Registrar of trade mark has been established for the maintenance of the trade mark Registry. Controller General of Patents and Designs is also the Registrar of trade mark. The Register of trade mark contains the record
of all registered trade mark, with names, addresses and description of proprietors and users, assignments and transmissions, and conditions and limitations and the name of registered users.
24.1. Any person who claims to be a proprietor of a trade mark can apply to the Registrar of trade mark for its registration. The application may be made in the name of an individual, partners of a firm, a Corporation, any Government Department, a trust or joint applicants claiming to be the proprietor of the trade mark.
25. Application
25.1. Application in the prescribed form has to be filed in the office of the trade mark Registry within whose territorial limits the principal place of business in India of the applicant, or the first applicant in the case of joint applicants, is situated. The Registrar is required to classify goods and services in accordance with the international classification for registration of trade marks. A single application is sufficient for registration of a trade mark for different classes of goods and services; however, the fee is payable for each class separately.

25.2. Every application for registration of a trade mark shall contain a representation of the mark in the place provided in the form for the purpose. Five additional representations of the mark have to be supplied with the application. The application can either be accepted completely or accepted subject to amendments or rejected. It is possible that an application is accepted and later, before registration, the acceptance is found to be in error. In such a case the Registrar, after hearing the Applicant may withdraw the acceptance.

26. Advertisement
Soon after acceptance, the application is advertised in the Trade Mark Journal to provide the public an opportunity to oppose the registration. Any person may, within three months from the date of the advertisement or within such further period not exceeding one month, give notice in writing to the Registrar of opposition to the registration. When the procedure for registration, including the opposition, if any, is satisfactorily complete, the Registrar is mandated to register the mark. The registration of a trade mark is for a period of ten years, but it may be renewed from time to time indefinitely.
27. What kind of trade marks can be Registered?
27.1. A trade mark which consists of at least one of the following essential characteristics can be registered.
a) The name of a company, individual or firm represented in a particular or special manner;
b) The signature of the applicant for registration;
c) One or more invented words;
d) One or more words having no direct reference to the character or quality of the goods except the exceptions listed in the next section;
e) Any other distinctive trade mark ; and
f) A trade mark which has acquired distinctiveness by use over a prolonged period of time.

27.2. A part of trade mark can be registered separately in addition to a whole trade mark if it satisfies the requirements of registration of a trade mark. The Act also provides for registration of the same or similar trade mark by more than one proprietors in the case of honest concurrent use or other special circumstances.

28. Trademarks not Registrable
28.1. The Act debars a trade mark from registration if it is not distinctive, or consists exclusively of marks or indications which have become customary in the current language and practice. Also, mark falling in any of the following categories is not registerable:
28.1.1. a mark which is identical with or deceptively similar to a trade mark already registered in respect of the same goods or goods of the same description;
28.1.2. a mark the use of which would be contrary to any law or which would be disentitled for protection in a court of law;
28.1.3. a mark comprising or containing scandalous or obscene matter;
28.1.4. a mark comprising or containing any matter likely to hurt the religious susceptibilities of any class or section;
28.1.5. a word which is commonly used and accepted name of any single chemical element or compound, in respect of chemical substances; and
28.1.6. a geographical name or a surname or a personal name or any common abbreviation thereof or the name of a sect, caste or tribe in India.

28.2. Shape trade mark attract prohibition from registration in certain conditions which may arise in a very limited number of cases, and it would be difficult in those cases to satisfy the distinctiveness criterion. A mark cannot be registered as a trade mark, if it consists exclusively of the shape of goods
(a) which results from the nature of goods themselves. For example, shape of an apple used for apples or their packaging;
(b) which is necessary to obtain a technical result. An exclusively technical shape will be the one if no other shape will perform its function;
(c) which gives substantial value to the goods. There may be difficulty in interpreting this provision.
28.3. The word exclusively is to be noted here. If a mark has a shape of any of the descriptions given above but has other additional features, it could be considered for registration subject to other essential qualifications for a trade mark. Also, an
unregistered trade mark can continue to have a shape of a description that makes it ineligible for registration. There are also relative grounds for refusal of registration.

28.4. If a trade mark is identical with an earlier trade mark, or if it is similar to an earlier trade mark and covers identical goods and services so as to cause confusion in the mind of the public, it will not be registered.

28.5. If a trade mark has similarity or identity with an earlier well-known trade mark but is sought to be applied to a different category of goods, it will not be registered, as it seeks to exploit a well known brand for an unfair advantage or may harm the reputation of the earlier, well known trade mark.
28.6. If a trade mark violates any law, in particular the law of passing off protecting an unregistered trade mark, or the law of copyright, it shall not be registered.

29. The Act provides for registration of same or similar trade mark by more than one proprietor in case of honest, concurrent use. The trade mark is considered to be an incorporeal property of the owner of the mark. So it is assignable and transmissible as in the case of other forms of property. But considering the peculiarities of the property in trade mark, it is subject to a number of restrictions on assignability. A registered trade mark has to be used on the goods it was applied for. If it is not used for long, it can be taken off the register on application made by any aggrieved person to the Registrar or to the Appellate Board on the ground that its owner had no intention to use it while registering it.

30. Similar and Deceptively Similar Trade Mark
30.1. The word similar is not defined in the Act. However, a trade mark is said to be deceptively similar to another if it so nearly resembles that other mark as to be likely to deceive or cause confusion. The deceptively similar mark includes not only confusion but deception also. Near resemblance is mentioned in the Act in connection with registered trade mark in the name of the same proprietor which may closely resemble each other, so as to deceive or cause confusion in the mind of a user. The Registrar may require them to be registered as associated trade mark.The following factors are to be taken into consideration when deciding the question of similarity:
30.1.1. The nature of the marks;
30.1.2. The degree of resemblance;
30.1.3. The nature of goods in which they are likely to be used as trade mark;
30.1.4. The similarity in nature, character and nature of goods in which it is used;
30.1.5. The nature of the potential class of consumers; and
30.1.6. The visual and phonetic similarity.

31.1. Exploiting Trade Marks – The Owner of a Trade mark can exploit his mark to his best advantage by either assigning and transmitting or by Licensing.


32. Assignment and Transmission
32.1. The registered trade mark is assignable and transmissible, in respect of either some or all the goods or services for which the trade mark is registered. The assignment or transmission of a must be in writing. Transmission means transfer by operation of law, devolution to the representative of a deceased person and any other mode of transfer other than assignment. If assignment or transmission of a trade mark would create multiple exclusive rights in more than one person, which might deceive or cause confusion, restrictions could be imposed on such assignment or transmission. The confusion or deception could be in relation to same goods or services, same description of goods or services goods or services, or description of goods or services which are associated with each other.

33.1. Licensing and Registered Users
33.2. The proprietor of a trade mark can assign or licence it to a third party for use. The third party can be either a registered user or an unregistered user. If some one wants to be a registered user of a trade mark, he has to make an application in a prescribed manner jointly with the proprietor of the trade mark, to the registrar, enclosing a copy of the agreement between them stating the trade mark and the specific uses to be covered by the user, the degree of control to be exercised by the proprietor, and whether there would be any more registered users permitted by the proprietor. For an unregistered user, permitted by the proprietor, the use of trade mark shall be deemed to have been made by the proprietor and not by the person permitted by the proprietor.

33.2. The right to the use of the mark is not assignable and transmissible. Subject to any agreement between the parties, a registered user may sue for infringement as if he were the proprietor of the trade mark and make the registered proprietor a defendant in the case.


34. Infringement
34.1. If a person, who is not the owner of a registered trade mark, without permission from the owner uses the same trade mark, or a deceptively similar trade mark in the course of trade mark, he infringes the trade mark and is liable to be sued for legal remedies by the rightful owner, or persons so authorised. No action for infringement is available in respect of unregistered trade mark; however, common law rights for action against ‘passing off’ are not affected.
34.2. Specifically, infringement is caused in the following cases:
34.2.1. the mark is identical and is used for similar goods/services;
34.2.2. the mark is similar to the registered mark and is used for the same or similar goods/services as covered by the registered trade mark;
34.2.3. the mark is identical with the registered trade mark and is used for identical goods; and the mark is therefore likely to cause confusion on the part of the public.
34.3. If a trade mark has a reputation in India, the use of a mark identical with or similar to it, on goods or services which are different, constitutes infringement as such use, without due cause, would take unfair advantage of a reputed trade mark or harm its distinctive character. The Act prohibits adoption of a registered trade mark by another person as trade name, i.e. the name of an enterprise.
34.4. A suit for infringement of registered trade mark must be filed in the district court within whose territorial jurisdiction, the plaintiff (or if there are more than one such person, any one of them) instituting the suit or proceeding actually and voluntarily resides or carries on business or personally works for gain.
35. Offences and Penalties
35.1. A person making a registered trade mark or a deceptively similar mark is deemed to falsify a trade mark if he is doing it without the consent of the proprietor of the trade mark. Any alteration, addition, effacement of a genuine trade mark also amounts to its falsification. A person who, without authorisation, applies registered trade mark or a deceptively similar mark to goods or services or any package containing goods is deemed to falsely apply the genuine trade mark. If any person uses any package bearing a mark which is identical with or deceptively similar to the registered trade mark for the purpose of packing, filling or wrapping any goods other than the genuine goods of the proprietor of the trade mark he is guilty of falsely applying the trade mark.
35.2. Offence under the Act is committed if a person makes, disposes of, or has in his possession, any die, block, machine, plate or other instrument for the purpose of falsifying or of being used for falsifying a trade mark:
1. applies any false trade description to goods or services, or
2. applies a false indication of the country or place where the goods were produced or name and address of the manufacturer, or of the person for whom they are produced.
3. tampers with, alters or effaces an indication of origin which has been applied to any goods to which it is required to be applied.
35.3. The above mentioned offences shall be punishable with imprisonment for a term of minimum of six months but which may extend to three years and with a minimum fine of fifty thousand rupees but which may extend to two lakh rupees. For adequate and special reasons mentioned in the judgement, the court may impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand rupees.
35.4. Penalty for selling goods or providing services to which false trade mark or false trade description is applied is punishable with imprisonment for a minimum term of six months but which may extend to three years and with a minimum fine of fifty thousand rupees but which may extend to two lakh rupees.
35.5. Enhanced penalty can be imposed on second or subsequent conviction. Such offences shall be punishable with imprisonment for a term between one to three years and with fine between one lakh rupees to two lakh rupees.
35.6. A person, who represents an unregistered trade mark as a registered trade mark, shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both.
35.7. The penalty for falsification of entries in the register is imprisonment for a term, which may extend to two years, or a fine, or both. The use of words, which may falsely suggest that a person’s place of business is officially connected with the trade mark office, attracts imprisonment for a term up to two years or a fine or both.
35.8. If the person committing an offence under this Act is a company, the company as well as every person in charge of, and responsible to, the company for the conduct of its business at the time of the commission of the offence shall be deemed to be guilty of the offence. A company means any corporate body and includes a firm or other association of individuals. Abetment of any offence is punishable as if the abetter himself committed that offence.
For more information on Indian Trademark registration procedures kindly visit http://ipindia.nic.in/tmr_new/default.htm

36. Indian Trade Mark Act, 1999: Salient Features
36.1. Some major changes brought about in the law of trade marks in India by the Trade Mark Act, 1999 are summarised as under:
36.1.a. Inclusion of trade mark for services in the definition of trade mark;
36.1.b. A new provision for registration of Collective Marks;
36.1.c. Prohibition of registration of certain marks which are mere reproductions of or imitations of well known mark;
36.1.d. Provision for filing a single application for registration in more than one class of goods and/or services;
36.1.e. Increasing the term of registration of a trade marks from 7 to 10 years and providing a grace period of six months for payment of renewal fees;
36.1.f. Amplification of circumstances in which validity of registration can be contested;
36.1.g. Vesting the final authority in the Registrar for disposing of application for registration of Certification Trade Mark ;
36.1.h. Harmonizing penal provisions of the trade marks law with The Copyright Law;
36.1.i. Provision for establishment of an Appellate Board.
37. Amendments - For the original pdf text of The Amendment Bill to be introduced in Lok Sabha for the amendment of the Act 1999, kindly visit http://www.prsindia.org/docs/bills/1187934649/1187934649_Trade_20Marks.pdf

REFERENCE
1.Trade Mark Act, 1999 (Bare Act),
2.Trade Mark Act, 1958 (Bare Act),
3. Legislations on Trade Mark of EU, US, France, Germany, Japan etc.,
4. Intellectual Property Law-Prof. A. Chandrasekaran
5. Law relating to Patents, Trademarks, Copyright, Designs & Geographical Indications- B.L.Wadhera
6. Intellectual Property Law – P.Narayanan
7. Cochin Law Review
8. Kashmir Law Review
9. www.indlaw.com
10. http://www.wipo.int/treaties/en/ip/tlt/
11. http://www.wipo.int/freepublications/en/marks/900/wipo_pub_900.pdf
12. http://en.wikipedia.org/wiki/Trademark_distinctiveness
13. http://en.wikipedia.org/wiki/Priority_rights
14. http://en.wikipedia.org/wiki/Trademark_infringement
15. http://ipindia.nic.in/tmr_new/default.htm
16. www.prsindia.org/docs/bills/1187934649/1187934649_Trade_20Marks.pdf 17. http://en.wikipedia.org/wiki/Trade_mark_law_of_the_European_Union
18. http://en.wikipedia.org/wiki/Community_Trade_Mark

fromSC Vashishth
to
date2 December 2008 11:12
subjectA landmark Decision clarifying the obligations of NGOs entailed by the RTI Act
mailed-bygmail.com

Dear Friends,

This decision by Central Information Commissioner brings NGOs funded by Govt under the ambit of RTI Act and also requires the NGOs to set up mechanisms to handle RTI applications.

Here is the exact order. Are we ready?

warm regards

A three member CIC Bench consisting of Chief Information Commissioner
Wajahat Habibullah, Information Commissioners A.N. Tiwari and Mrs.
Padma Balasubramanian pronounced a landmark Decision (Complaint
No.CIC/PB/C/2008/00723, 26Nov.2008) clarifying the obligations of
NGOs entailed by the RTI Act:

"The Commission feels that there may be similar such cases where an
NGO which is being substantially financed by the Government has not
set up a mechanism and have thereby evaded compliance with provisions
of the RTI Act. The Commission, therefore, recommends that Ministries
and Departments of the Central Government should make an assessment
as to whether the NGOs who are being financed by them have set up a
mechanism to provide information to the citizens who wish to obtain
information under the RTI Act. If such a mechanism has not been set
up by any of the NGOs receiving funds from the Central Government, it
is recommended that the Government should not release any fund till
the time such mechanism is set up and other obligations as
contemplated under the Act are complied with. A copy of this order
should be sent to all Ministries and Departments of the Government of
India for taking further necessary action in regard to this matter."
Warm regards,

Subhash Chandra Vashishth
Mobile : +91-11-9811125521

THE PASSPORTS ACT, 1967

[Act No. 15 of 1967 dated 24th. June, 1967]

An Act to provide for the issue of passports and travel documents, to regulate the departure from India of citizens of India and for other persons and for matters incidental or ancillary thereto.
Be it enacted by Parliament in the Eighteenth Year of the Republic of India as follows: -
1. Short title and extent
(1) This Act may be called the Passports Act, 1967.
(2) It extends to the whole of India and applies also to citizens of India who are outside India.
2. Definitions
In this Act, unless the context otherwise requires,
(a) "departure", with its grammatical variations and cognate expressions, means departure from India by water, land or air;
(b) "passport" means a passport issued or deemed to have been issued under this Act;
(c) "passport authority" means an officer or authority empowered under rules made under this Act to issue passports or travel documents and includes the Central Government;
(d) "Prescribed" means prescribed by rules made under this Act;
(e) "travel document" means a travel document issued or deemed to have been issued under this Act.
3. Passport or travel document for departure from India
No person shall depart from, or attempt to depart from, India unless he holds in this behalf a valid passport or travel document.
Explanation.- For the purposes of this section,-
(a) "passport" includes a passport which having been issued by or under the authority of the Government of a foreign country satisfies the conditions prescribed under the Passport (Entry into India) Act, 1920 in respect of the 34 of 1920 class of passports to which it belongs;
(b) "travel document" includes a travel document which having been issued by or under the authority of the Government of a foreign country satisfies the conditions prescribed.
4. Classes of passports and travel documents
(1) The following classes of passports may be issued under this Act, namely: -
(a) ordinary passport; (b) official passport; (c) diplomatic passport.
(2) The following classes of travel documents may be issued under this Act, namely: -
(a) emergency certificate authorising a person to enter India;
(b) certificate of identity for the purpose of establishing the identity of person;
(c) such other certificate or document as may be prescribed.
(3) The Central Government shall, in consonance with the usage and practice followed by it in this behalf, prescribe the classes of persons to whom the classes of passports and travel documents referred to respectively in sub-section (1) and sub-section (2) may be issued under this Act.
5. Applications for passports, travel documents, etc., and orders thereon
1[(1) An application for the issue of a passport under this Act for visiting such foreign country or countries (not being a named foreign country) as may be specified in the application may be made to the passport authority and shall be accompanied by 2[Such fee as may be prescribed to meet the expenses incurred on special security paper, printing, lamination and other connected miscellaneous services in issuing passports and other travel documents].
Explanation.- In this section, "named foreign country" means such foreign country as the Central Government may, by rules made under this Act, specify in this behalf.
(1A) An application for the issue of-
(i) a passport under this Act for visiting a named foreign country; or
(ii) a travel document under this Act, for visiting such foreign country or countries (including a named foreign country) as may be specified in the application or for an endorsement on the passport or travel document referred to in this section,
may be made to the passport authority and shall be accompanied by such fee (if any) not exceeding rupees fifty, as may be prescribed.
(1B) Every application under this section shall be in such form and contain such particulars as may be prescribed.]
(2) On receipt of an application 3[under this section], the passport authority, after making such inquiry, if any. as it may consider necessary, shall, subject to the other provisions of this Act, by order in writing,-
(a) issue the passport or travel documents with endorsement, or, as the case may be, make on the passport or travel document the endorsement, in respect of the foreign country or countries specified in the application; or
(b) issue the passport or travel document with endorsement, or, as the case may be, make on the passport or travel document the endorsement, in respect of one or more of the foreign countries specified in the application and refuse to make an endorsement in respect of the other country or countries; or
(c) refuse to issue the passport or travel document or, as the case may be, refuse to make on the passport or travel document any endorsement.
(3) Where the passport authority makes an order under clause (b) or clause (c) of sub-section (2) on the application of any person, it shall record in writing a brief statement of its reasons for making such order and furnish to that person on demand a copy of the same unless in any case the passport authority is of the opinion that it will not be in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country or in the interests of the general public to furnish such copy.
6. Refusal of passports, travel documents. etc.
(1) Subject to the other provisions of this Act, the passport authority shall refuse to make an endorsement for visiting any foreign country under clause (b) or clause (c) of sub-section (2) of section 5 on any one or more of the following grounds, and no other ground, namely: -
(a) that the applicant may, or is likely to, engage in such country in activities prejudicial to the sovereignty and integrity of India:
(b) that the presence of the applicant in such country may, or is likely to, be detrimental to the security of India;
(c) that the presence of the applicant in such country may, or is likely to, prejudice the friendly relations of India with that or any other country,
(d) that in the opinion of the Central Government the presence of the applicant in such country is not in the public interest.
(2) Subject to the other provisions of this Act, the passport authority shall refuse to issue a passport or travel document for visiting any foreign country under clause (c) of sub-section (2) of section 5 on any one or more of the following grounds, and on no other ground, namely: -
(a) that the applicant is not a citizen of India.,
(b) that the applicant may, or is likely to, engage outside India in activities prejudicial to the sovereignty and integrity of India.,
(c) that the departure of the applicant from India may, or is likely to, be detrimental to the security of India;
(d) that the presence of the applicant outside India may, or is likely to, prejudice the friendly relations of India with any foreign country;
(e) that the applicant has, at any time during the period of five years immediately preceding the date of his application, been convicted by a court in India for any offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than two years;
(f) that proceedings in respect of an offence alleged to have been committed by the applicant are pending before a criminal court in India;
(g) that a warrant or summons for the appearance, or a warrant for the arrest, of the applicant has been issued by a court under any law for the time being in force or that an order prohibiting the departure from India of the applicant has been made by any such court;
(h) that the applicant has been repatriated and has not reimbursed the expenditure incurred in connection with such repatriation;
(i) that in the opinion of the Central Government the issue of a passport or travel document to the applicant will not be in the public interest.
7. Duration of travel document
A passport or travel document shall, unless revoked earlier, continue in force for such period as may be prescribed and different periods may be prescribed for different classes of passports or travel documents or for different categories of passports or travel documents under each such class:
Provided that a passport or travel document may be issued for a shorter period than the prescribed period-
(a) if the person by whom it is required so desires; or
(b) if the passport authority, for reasons to be communicated in writing to the applicant, considers in any case that the passport or travel document should be issued for a shorter period.
4[8. Extention of period of passport

Where a passport is issued for a shorter period than the prescribed period under section 7, such shorter period shall, unless the passport authority for reasons to be recorded in writting otherwise determines, be extendable for a further period (which together with the shorter period shall not exceed the prescribed period) and provision of this Act shall apply to such extension as they apply to the issue thereof.]
9. Conditions and forms of passports and travel documents
The conditions subject to which, and the form in which, a passport or travel document shall be issued or renewed shall be such as may be prescribed:
Provided that different conditions and different forms may be prescribed for different classes of passports or travel documents or for different categories of passports or travel documents under each such class:
Provided further that a passport or travel document may contain in addition, to the prescribed conditions such other conditions as the passport authority may, with the previous approval of the Central Government, impose in any particular case.
10. Variation, impounding and revocation of passports and travel documents
(1) The passport authority may, having regard to the provisions of sub-section (1) of section 6 or any notification under section 19, vary or cancel the endorsements on a passport or travel document or may, with the previous approval of the Central Government, vary or cancel the conditions (other than the prescribed conditions) subject to which a passport or travel document has been issued and may, for that purpose, require the holder of a passport or a travel document, by notice in writing, to deliver up the passport or travel document to it within such time as may be specified in the notice and the holder shall comply with such notice.
(2) The passport authority may, on the application of the holder of a passport or a travel document, and with the previous approval of the Central Government also vary or cancel the conditions (other than the prescribed conditions) of the passport or travel document.
(3) The passport authority may impound or cause to be impounded or revoke a passport or travel document,-
(a) if the passport authority is satisfied that the holder of the passport or travel document is in wrongful possession thereof;
(b) if the passport or travel document was obtained by the suppression of material information or on the basis of wrong information provided by the holder of the passport or travel document or any other person on his behalf;
5[Provided that if the holder of such passport obtains another passport the passport authority shall also impound or cause to be impounded or revoke such other passport]

(c) if the passport authority deems it necessary so to do in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country, or in the interests of the general public;
(d) if the holder of the passport or travel document has, at any time after the issue of the passport or travel document, been convicted by a court in India for any offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than two years;
(e) if proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document are pending before a criminal court in India.
(f) if any of the conditions of the passport or travel document has been contravened;
(g) if the holder of the passport or travel document has failed to comply with a notice under sub-section (1) requiring him to deliver up the same;
(h) if it is brought to the notice of the passport authority that a warrant or summons for the appearance, or a warrant for the arrest, of the holder of the passport or travel document has been issued by a court under any law for the time being in force or if an order prohibiting the departure from India of the holder of the passport or other travel document has been made by any such court and the passport authority is satisfied that a warrant or summons has been so issued or an order has been so made.
(4) The passport authority may also revoke a passport or travel document on the application of the holder thereof.
(5) Where the passport authority makes an order varying or cancelling the endorsements on, or varying the conditions of, a passport or travel document under sub-section (1) or an order impounding or revoking a passport or travel document under sub-section (3), it shall record in writing a brief statement of the reasons for making such order and furnish to the holder of the passport or travel document on demand a copy of the same unless in any case, the passport authority is of the opinion that it will not be in the interests of the sovereignty and integrity of India, the security of India. friendly relations of India with any foreign country or in the interests of the general public to furnish such a copy.
(6) The authority to whom the passport authority is subordinate may, by order in writing, impound or cause to be impounded or revoke a passport or travel document on any ground on which it may be impounded or revoked by the passport authority and the foregoing provisions of this section shall, as far as may be, apply in relation to the impounding or revocation of a passport or travel document by such authority.
(7) A court convicting the holder of a passport or travel document of any offence under this Act or the rules made thereunder may also revoke the passport or travel document:

Provided that if the conviction is set aside on appeal or otherwise the revocation shall become void.
(8) An order of revocation under sub-section (7) may also be made by an appellate court or by the High Court when exercising its powers of revision.
(9) On the revocation of a passport or travel document under this section the holder thereof shall, without delay, surrender the passport or travel document, if the same has not already been impounded, to the authority by whom it has been revoked or to such other authority as may be specified in this behalf in the order of revocation.
11. Appeals
(1) Any person aggrieved by an order of the passport authority under clause (b) or clause (c) of sub-section (2) of section 5 or clause (b) of the proviso to section 7 or sub-section (1), or sub-section (3) of section 10 or by an order under sub-section (6) of section 10 of the authority to whom the passport authority is subordinate, may prefer an appeal against that order to such authority (hereinafter referred to as the appellate authority) and within such period as may be prescribed:
Provided that no appeal shall lie against any order made by the Central Government.
(2) No appeal shall be admitted if it is preferred after the expiry of the period prescribed therefor:
Provided that an appeal may be admitted after the expiry of the period prescribed therefor if the appellant satisfies the appellate authority that he had sufficient cause for not preferring the appeal within that period.
(3) The period prescribed for an appeal shall be computed in accordance with the provisions of the Limitation Act, 1963, (36 of 1963) with respect to the computation of the periods of limitation thereunder.
(4) Every appeal under this section shall be made by a petition in writing and shall be accompanied by a copy of the statement of the reasons for the order appealed against where such copy has been furnished to the appellant and 6[by such fee as may be prescribed for meeting the expenses that may be incurred in calling for relevant records and for connected services]
(5) In disposing of an appeal, the appellate authority shall follow such procedure as may be prescribed:
Provided that no appeal shall be disposed of unless the appellant has been given a reasonable opportunity of representing his case.
(6) Every order of the appellate authority confirming, modifying or reversing the order appealed against shall be final.

12. Offences and penalties
(1) Whoever-
(a) contravenes the provisions of section 3; or
(b) knowingly furnishes any false information or suppresses any material information with a. view to obtaining a passport or travel document under this Act or without lawful authority alters or attempts to alter or causes to alter the entries made in a passport or travel document; or
(c) fails to produce for inspection his passport or travel document (whether issued under this Act or not) when called upon to do so by the prescribed authority; or
(d) knowingly uses a passport or travel document issued to another person; or
(e) knowingly allows another person to use a passport or travel document issued to him,
shall be punishable with imprisonment for a term which may extend to 7[two years or with fine which may extend to five thousand rupees] or with both.
8[(1A) Whoever, not being a citizen of India,-
(a) makes an application for a passport or obtains a passport by suppressing information about in nationality, or
(b) holds a forged passport or any travel document,
shall be punishable with imprisonment for a term which shall not be less than one year but may extend to five years and with fine which shall not be less than ten thousand rupees but which may extend to fifty thousand rupees] or with both.
(2) Whoever abets any offence punishable under 9[sub-section (1) or sub-section (1A)] shall, if the act abetted is committed in consequence of the abetment, be punishable with the punishment provided in that sub-section for that offence.
(3) Whoever contravenes any condition of a passport or travel document or any provision of this Act or any rule made thereunder for which no punishment is provided elsewhere in this Act shall be punishable with imprisonment for a term which may extend to three months or with fine which may extend to five hundred rupees or with both.
(4) Whoever, having been convicted of an offence under this Act, is again convicted of an offence under this Act shall be punishable with double the penalty provided for the latter offence,
13. Power to arrest

(1) Any officer of customs empowered by a general or special order of the Central Government in this behalf and any 10[officer of police or emigration officer] not below the rank of a sub-inspector may arrest without warrant any person against whom a reasonable suspicion exists that he has committed any offence punishable under section 12 and shall, as soon as may be, inform him of the grounds for such arrest.
(2) Every officer making an arrest under this section shall, without unnecessary delay, take or send the person arrested before a magistrate having jurisdiction in the case or to the officer in charge of the nearest police station and the provisions of 11[section 57 of the Code of Criminal Procedure, 1973 (2 of 1974)] shall, so far as may be, apply in the case of any such arrest.
14. Power of search and seizure
(1) Any officer of customs empowered by a general or special order of the Central Government in this behalf and any 10[officer of police or emigration officer] not below the rank of a sub-inspector may search any place and seize any passport or travel document from any person against whom a reasonable suspicion exists that he has committed any offence punishable under section 12.
(2) The provisions of the 12[Code of Criminal Procedure, 1973 (2 of 1974)] relating to searches and seizures shall, so far as may be, Apply to searches and seizures under this section.
15. Previous sanction of Central Government necessary
No prosecution shall be instituted against any person in respect of any offence under this Act without the previous sanction of the Central Government or such officer or authority as may be authorized by that Government by order in writing in this behalf.
16. Protection of action taken in good faith
No suit, prosecution or other, legal proceeding shall lie against the Government or any officer or authority for anything which is in good faith done or intended to be done tinder this Act.
17. Passport and travel document to be property of Central Government
A passport or travel document issued under this Act shall in all times remain the property of the Central Government.
13[***]
19. Passports and travel documents to be invalid for travel to certain countries
Upon the issue of t notification by the Central Government that a foreign country is-
(a) a country which is committing external aggression against India; or
(b) a country assisting the country committing external aggression against India; or
(c) a country where armed hostilities are in progress; or
(d) a country to which travel must be restricted in the public interest because such travel would seriously impair the conduct of foreign affairs of the Government of India,
a passport or travel document for travel through or visiting such country shall cease to be valid for such travel or visit unless in any case a special endorsement in that behalf is made in the prescribed form by the prescribed authority.
20. Issue of passports and travel documents to persons who are not citizens of lndia
Notwithstanding anything contained in the foregoing provisions relating to issue of a passport or travel document, the Central Government may issue, or cause to be issued, a passport or travel document to a person who is not a citizen of lndia if that Government is of the opinion that it is necessary so to do in the public interest.
21. Power to delegate
The Central Government may, by notification in the Official Gazette, direct that any power or function which may be exercised or performed by it under this Act other than the power under clause (d) of sub-section (1) of section 6 or the power under clause (i) of sub-section (2) of that section or the power under section 24, may, in relation to such matters and subject to such conditions, if any, as it may specify in the notification, be exercised or performed-
(a) by such officer or authority subordinate to the Central Government; or
(b) by any State Government or by any officer or authority subordinate to such Government; or
(c) in any foreign country in which there is no diplomatic mission of India, by such Consular Officer;
as may be specified in the notification.
22. Power to exempt
Where the Central Government is of the opinion that it is necessary or expedient in the public interest so to do, it may, by notification in the Official Gazette and subject to such conditions, if any, as it may specify in the notification,-
(a) exempt any person or class of persons from the operation of all or any of the provisions of this Act or the rules made thereunder; and

(b) as often as may be, cancel any such notification and again subject, by a like notification, the person or class of persons to the operation of such provisions.
23. Act to be in addition to certain enactments
The provisions of this Act shall be in addition to and not in derogation of the provisions of the Passport (Entry into India) Act, 1920 (34 of 1920), the 14[Emigration Act, 1983 (31 of 1983), the Registration of Foreigners Act, 1939 (16 of 1939), the Foreigners Act, 1946 (31 of 1946), 15[***] the Trading with the Ememy (Continuance of Emergency Provisions) Act, 1947 (16 of 1947), the Foreigners Law (Application and Amendment) Act, 1962 (42 of 1962), 16[the Foreign Exchange Regulation Act, 1973] and other enactments relating to foreigners and foreign exchange.
24. Power to make rules
(1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-
(a) the appointment, jurisdiction, control and functions of passport authorities,
(b) the classes of persons to whom passport and travel documents referred to respectively in sub-section (1) and sub-section (2) of section 4 may be issued;
(c) the form and particulars of application for the issue or renewal of a passport or travel document or for endorsement on a passport or travel document and where the application is for the renewal, the time within which it shall be made;
(d) the period for which passports and travel documents shall continue in force;
(e) the form in which and the conditions subject to which the different classes of passports and travel documents may be issued, renewed or varied;
17[(ee) specifying the foreign country for the purposes of the Explanation to sub-section (1) of section 5];
(f) the fees payable in respect of 18[[any application for the issue of a passport under sub-section (1) of section 5 or issue of a passport] for visiting a foreign country referred to in sub-section (1A) of section 5 or issue of a passport]] or travel document or for varying any endorsement or making a fresh endorsement on a passport or a travel document and the fees payable in respect of any appeal under this Act:
(g) the appointment of appellate authorities under sub-section (1) of section 11, the jurisdiction of, and the procedure which may be followed by, such appellate authorities;

(h) the services (including the issue of a duplicate passport or travel document in lieu of a passport or travel document lost, damaged or destroyed) which may be rendered in relation to a passport or travel document and the fees therefor,
(i) any other matter which is to be or may be prescribed or in respect of which this Act makes no provision or makes insufficient provision and provision is, in the opinion of the Central Government, necessary for the proper implementation of the Act.
(3) Every rule made under this Act shall be laid as soon as may be after it is made, before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or 19[in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid] in which it is so laid or the session immediately following, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so however, that any such modification or annulment shall be without prejudice to the validity or anything previously done under that rule.
25. Change of short title of Act 34 of 1920
In the Indian Passport Act, 1920, in sub-section (1) of section 1, for the words and figures "the Indian Passport Act, 1920", the words, brackets and figures "the Passport (Entry into India) Act, 1920" shall be substituted.
20[***]
27. Repeal and saving
(1) The Passports Ordinance, 1967 is hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken or purporting to have been done or taken under the said Ordinance shall be deemed to have been done or taken under this Act as if this Act had commenced on the 5th day of May, 1967.
Foot Notes
1. Inserted by Act 31 of 1978, w.e.f. 18th. August, 1978.
2. Substituted. for the words "a fee of rupees fifty" by the passports (Amendment) Act 1993 (Act No. 35 of 1993) dated 13th April, 1993.
3. Inserted by Act 31 of 1978, w.e.f. 18th. August, 1978.
4. Substituted by Act No. 35 of 1993 dated 13th. April, 1993 for earlier section 8.
5. Proviso inserted by Act No. 35 of 1993 dated 13th. April, 1993.
6. Substituted by Act No. 35 of 1993 dated 13th. April 1993, for the words and brackets "by such fee (if any) not exceeding rupees twenty five as may be prescribed".

7. Substituted by Act No. 35 of 1993 dated 13th. April 1993, for the words "Six months or with fine which may extend to two thousand rupees".
8. Inserted by Act No. 35 of 1993 dated 13th April 1993.
9. Substituted by Act. No. 35 of 1993 dated 13th April 1993.
10. Substituted by Act No. 35 of 1993 dated 13th April 1993 for the words "Officer of Police".
11. Substituted by Act No. 31 of 1978, w.e.f. 18th. August 1978.
12. Substituted by Act No. 31 of 1978.
13. Earlier section 18 omitted by Act No. 35 of 1993 dated 13th. April 1993.
14. Substituted by Act No. 35 of 1993 dated 13th. April, 1993 for the words and figures "The Emigration Act, 1922".
15. Omitted by Act No. 31 of 1978, w.e.f. 18th. August, 1978.
16. Inserted by Act No. 31 of 1978, w.e.f. 18th. August, 1978.
17. Inserted by Act No. 31 of 1978, w.e.f. 18th. August, 1978.
18. Substituted by Act No. 35 of 1993 dated 13th April, 1993, for the words "any application for the issue or the renewal of a passport".
19. Substituted by Act No. 31 of 1978, w.e.f. 18th. August, 1978.
20. Earlier section 26 omitted by Act No. 35 of 1993 dated 13th April, 1993.

Accessibility a Legal and Constitutional Right

Note: This paper was presented at the Nationalworkshop on "Facilitating Public transportation for Persons with Disabilities" held during the 22nd to 24th of March, 2008 at Dravidian University Kuppam.

1. Introduction
1. The issues of the Persons with Disabilities took a long run to attain the recognition of Rights. Starting from the view of superstition and ignorance transcending into charity and then into rehabilitation has now obtain the status of the status of a Right based struggle. Thanks to the contribution of the international community which worked through the UN mechanism.

1.2. First Stage : Persons with Disability were regarded as having limited possibilities of contributing to socio - economic development. Even the so called welfare measures, of those days contributed only towards their further isolation and segregation.

1.3. Second Stage : Measures began to orient towards education for children with disabilities, institutionalised elementary care and rehabilitation of persons attaining disability in the adult hood.

1.4. Looking the Second World War as an event in the world History, its contribution for a greater paradigm shift cannot be ignored. The reason being it is that it left behind lots and lots of people through out the world as disabled. This compelled the governments to look up their issues with more focus. Thus new concepts of integration and normalisation emerged.

1.5. Third Stage : Late sixties generated understanding on actual accessibility issues and the Fourth Stage : Declaration of the United Nations Decade of Disabled Persons(1983 - 1992) and the programmes of the United Nations through ECOSOC.

2. Transportation a life line.

2.1. Transportation is the key aspect of the economy and as such it occupies a vital position in the life of every individual. This might have been the one among several reasons for the makers of our Constitution to declare that Freedom to move is a Fundamental Right. One has to move out at least for a short distance for his education, medical needs, employment and so on. Thus the right to transportation has two aspects falling within its ambit.

1. A barrier free environment that ensures every one is able to move freely.
2. An accessible transport system convenient for the use of all
Both of them together is called the universal Accessibility.

2.2. Our Constitution in Part Three does not specifically spell out for the Rights of the Persons with Disability but encompasses the entire gamut of non discrimination under one provision, that is Article 14. It says :
The State shall not deny to any person equality before the law or the equal protection of Laws within the Territory of India.
Thus the Persons with Disability enjoy equal freedom of movement as others do.

2.3. Further the Constitution spells out few categories of people as underprivileged and if the persons belonging to those category than they are entitled to protection under those categories also. Like, the women with Disability are entitled to special treatment under the benefits available for women and the disabled persons belonging to the Scheduled Tribes and class are entitled to special treatment under the category reserved for the persons belonging to the schedule caste and Tribes. Thus flows the whole set of benefits reserved under the Constitution to the Persons with Disability.

2.4. Behind the Constitutional frame the International Instruments spell out certain basic rights which should be adopted in the national legislations of every country which has accepted those instruments. Constitution under Article 51 has mandated on the state to endeavour towards fostering respect for International Law and Treaty obligations in the dealings of organised People with one and another. Article 51 being a directive Principle for the State Policy is fundamental in the governance of the Country and thus the International declarations, conventions and treaties become a part of our National Law.

3. Inter National Instruments on the Rights of the Disabled.

3.1. UN Declaration on the Rights of Persons With Disabilities. Adopted in the 2433rd Plenary Meeting on 09.12.1975

3.1.1. This Declaration is the first among the international instruments that came in the field of the Disability Rights. This Declaration calls for the national and international action to ensure that certain basic Rights of the Persons with Disability are protected while making any policy decisions or legislation by the Governments of the member states.
The important of such basic Rights are
Article 3. To respect for their Human Dignity as an inherent Right and that they have same fundamental Right as their fellow citizens of the same age.
Article 5. They are entitled for measures designed to enable them in becoming self reliant.
Article 8. they are entitled to have their special needs taken into consideration at all stages of economic and social planning.
Article 10. they are entitled to protection against all exploitation, all regulations and all treatment of a discriminatory abusive or degrading nature.

3.2. UN Standard Rules on Equalisation of Opportunities for Persons With Disabilities.

3.2.1. These Rules have been formulated with 6 point objectives towards emphasising accessibility in societal organisation and socio economic development. It Proposes models for political policy making and prescribes an effective monitoring mechanism. These rules are divided into 4 chapters and chapter 2 deals on the accessibility issues. These Rules mandates the States to introduce programmes of action to make physical environment accessible and to provide access to information and communication.


3.2.2Article II (a)
1. States should initiate measures to remove the obstacles to participation in the Physical environment. Such measures should be to develop standards and guidelines and to consider enacting legislation to ensure accessibility to various areas in society, such as housing, building, public transport services and other means of transportation, streets and other out door environments.

3. Accessibility requirements should be included in the design and construction of the physical environment from the beginning of the designing process.

4. Organisations of persons with disabilities should be consulted when standards and norms for accessibility are being developed. They should also be involved locally from the initial planning stage when public construction. Projects are being designed, thus ensuring maximum accessibility.
These Rules has also established a clear cut mechanism for monitoring the implementation.

3.3. The United Nations Economic and Social Commission for Asia and the Pacific (ESCAP)

3.3.1. It is the regional development arm of the United Nations for the Asia-Pacific region. Thirty-three countries attending the forty-eighth ESCAP session in April 1992 joined in sponsorship of resolution 48/3 on an Asian and Pacific Decade of Disabled Persons, 1993-2002. In adopting the resolution, the Governments of the region expressed their collective commitment to the full participation and equality of people with disabilities. Earlier the UN General Assembly adopted Resolution 37/52 on the 3rd day of December,1982 wherein the un had declared the world programme of Action and through resolution 37/53 proclaimed the period 1983- 1992 as the United Nations Decade of Disabled persons. Hence forth, the 3rd day of December is celebrated as the world Disability day.

3.3.2. The framework consists of the major policy categories under which efforts will be required for the implementation of ESCAP resolution 48/3. These basic policy categories include: National coordination; Legislation; Information; Public awareness; Accessibility and communication; Education; Training and employment; Prevention of causes of disabilities; Rehabilitation services; Assistive devices; Self-help organizations and Regional cooperation.

3.3.3. Each of the policy categories constituting the framework contains a list of areas of concern of direct relevance to the development of policies in support of the full participation and equality of people with disabilities in Asia and the Pacific.
a. Concerning existing legislation:
Conduct of a survey to identify legal provisions that are restrictive to people with disabilities;
Amendment or repeal of those restrictive legal provisions and elimination of interpretations that are unfavourable to people with disabilities;

b. Enactment of a basic law on protection of the rights of all persons with disabilities and prohibition of abuse and neglect of these persons and discrimination against them;

c. Enactment of legislation aimed at equal opportunity for people with disabilities, covering, for example:
Affirmative action measures and incentives in favour of opportunities for people with disabilities to participate in education, training, job placement, employment and entrepreneurship;
Tax relief and subsidies, as appropriate, for parents and guardians of children with disabilities, as well as for people with disabilities;
Customs clearance and exemption from customs duty of imported vehicles, assistive devices, equipment and materials, including medical supplies, required to
facilitate the daily life of people with disabilities;
d. Enactment of legislation aimed at the elimination of architectural and logistical barriers to freedom of movement of citizens with disabilities, including incentives to encourage:

Private and public sector involvement in improving accessibility of the built environment;

Facilitation of use, by persons with disabilities, of land, air and water transport systems;

e. Enactment of legislation aimed at the elimination of communication barriers to reduce the social and physical isolation commonly faced by people with disabilities, covering, for example:
Production and dissemination of information, especially public information, in appropriate formats (e.g., large print, Braille, indigenous sign language, audio/video cassette and floppy diskette);

h. Development of means of ensuring the effective implementation and enforcement of legislation,

j. Dissemination of information on legislation, particularly to people with disabilities and their advocates,

• Enacted specifically to promote equal opportunities for people with disabilities;

• Enacted for the benefit of broader population groups (e.g., legislation on an issue [poverty alleviation] or for a specific group [women]) among whom many people with disabilities are included;

k. Encouragement of the use of relevant United Nations guidelines on national disability legislation;

l. Encouragement of exchange of expertise and experiences among ESCAP members and associate members concerning the enactment and implementation of equalization legislation.

The Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995 was enacted to wards implementing this Program.
3.4 Convention on the Rights of Persons with Disabilities
3.4.1 India has ratified a UN convention to promote and protect the human rights and fundamental freedoms of those with disabilities as also respect for their inherent dignity. The adoption of the convention followed four years of intense negotiations. The convention marks a major step toward changing the perception of disability and ensures that societies recognise that all people must be provided with the opportunities to lead a life to their fullest potential. Article 9 which speaks on Accessibility states as follows:
Article 9(1) : To enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas. These measures, which shall include the identification and elimination of obstacles and barriers to accessibility, shall apply to, inter alia:
(a) Buildings, roads, transportation and other indoor and outdoor facilities, including schools, housing, medical facilities and workplaces;




4. National Laws :

4.1. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.

4.1.1. This is the first legislation in the field of Disability Laws. This Law has come into force on February 7, 1996. This law is an important landmark and is a significant step in the direction of ensuring equal opportunities for people with disabilities and their full participation in the nation building. The Act provides for both preventive and promotional aspects of rehabilitation like education, employment and vocational training, job reservation, research and manpower development, creation of barrier-free environment, rehabilitation of persons with disability, unemployment allowance for the disabled, special insurance scheme for the disabled employees and establishment of homes for persons with severe disability etc.
4.1.2. Chapter VIII of this Act deals with the Non Discrimination provisions. The sections relating to Right for transportation are reproduced hereunder.
NON-DISCRIMINATION
Sec. 44. Establishments in the transport sector shall, within the limits of their economic capacity and development for the benefit of persons with disabilities, take special measures to
(a) Adapt rail compartments, buses. Vessels and aircrafts in such a way as to permit easy access to such persons;
(b) Adapt toilets in rail compartments, vessels, aircrafts and waiting rooms in such a way as to permit the wheel chair users to use them conveniently.
Sec. 45. The appropriate Governments and the local authorities shall, within the limits of their economic capacity and development. Provide for-
(a) Installation of auditory signals at red lights in the public roads for the benefit of persons with visually handicap;
(b) Causing curb cuts and slopes to be made in pavements for the easy access of wheel chair users;
(c) Engraving on the surface of the zebra crossing for the blind or for persons with low vision;
(d) Engraving on the edges of railway platforms for the blind or for persons with low vision;
(e) Devising appropriate symbols of disability;
(f) Warning signals at appropriate places.
Sec. 46. The appropriate Governments and the local authorities shall, within the limits of their economic capacity and development, provide for
(a) Ramps in public buildings;
(b) Braille symbols and auditory signals in elevators or lifts;
(c) Braille symbols and auditory signals in elevators or lifts;
(d) Ramps in hospitals, primary health centers and other medical care and rehabilitation institutions.
Bibliography:
Text Book Reference: Gautam Banargee, Disability and the Law,
Web Reference
1. www.aristotlerocks.blogspot.com 2. http://socialjustice.nic.in/disabled/act.htm#NDiscrim 3. http://www.ccdisabilities.nic.in/chapter8.htm 4. http://www.un.org/esa/socdev/enable/rights/convtexte.htm

Rent Contol Act in Tamilnadu

1. RENT CONTROL LEGISLATION IN GENERAL:

1.1. The strain of the last World War, Industrial Revolution, the large scale exodus of the working people to the urban areas and the social and political changes brought in their wake social problems of considerable magnitude and complexity and their concomitant evils. The country was faced with spiraling inflation, soaring cost of living, increasing urban population and scarcity of accommodation. Rack renting and large scale eviction of tenants under the guise of the ordinary law exacerbated those conditions making the economic life of the community unstable and insecure. To tackle these problems and curb these evils, the Legislatures of the States in India enacted Rent Control Legislations.

1.2. In the state of Tamilnadu, the necessity for imposing control of rents and prevention of unreasonable eviction of tenants arose during the war period. Then, State Government issued Rent Control Orders in the year 1941 with regard to residential and non-residential buildings. Such orders were renewed from time to time until when the Legislature itself stepped in and enacted the Madras Act XV of 1946. This Act came into force on 1st October, 1946 and was intended to remain in force for two years. But its life was extended from time to time by issuing notifications by the State Government and finally this Act of 1946 was replaced by Madras Act XXV of 1949, which as originally enacted was to remain in force until 30th September, 1951. Its life was also extended from time to time, by subsequent amendments and ultimately the present Act, The Tamilnadu Buildings (Lease and Rent Control) Act,1960(XVIII of 1960) was passed. This again was declared to be in force for a period of five years and its life was extended from time to time. Finally this was made permanent by Section 28 of the Amendment Act 23 of 1973 and still remains in force.



2. What is a Building?
2.1. Building means any building or hut or part of a building or hut which is let or to be let for rent or Lease. It can be let out either for residential or non-residential purposes. The term building also includes-
(a) the garden, grounds and out-houses, if any, adjacent to or in the surroundings of such building, and let out or to be let out along with such building
(b) any furniture supplied by the landlord for use in such building but does not include a room in a hotel or boarding house.;

3. Who is a Landlord?

3.1. “Landlord” includes the person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another or on behalf of himself and others. He may also either be an agent, trustee, executor, administrator, receiver or guardian. A tenant who sub-lets shall be deemed to be a landlord within the meaning of this Act in relation to the sub-tenant.

4. Who is a Tenant?

4.1. “Tenant” means any person by whom the rent is payable. Some times it may be so that the some one else is paying rent on behalf of another person. In such case the person on whose behalf the rent is paid is also a tenant. The surviving spouse, or any son, or daughter, or the legal representative of a deceased tenant who-
(i) in the case of a residential building, had been living with the tenant in the building as a member of the tenant’s family up to the death of the tenant, and
(ii) in the case of a non-residential building, had been in continuous association with the tenant for the purpose of carrying on the business of the tenant up to the death of the tenant and continues to carry on such business thereafter, and a person continuing in possession after the termination of the tenancy in his favour will also be called as a tenant.

4.2. This does not include a person placed in occupation of a building by its tenant or a person to whom the collection of rents or fees in a public market, cart-stand or slaughter-house or of rents for shops has been farmed out or leased by a Municipal Council or a Panchayat Unioin Council or the Municipal Corporation of Madras or the Municipal Corporation of Madurai.

5. What is a Fair Rent :

5.1. The fair rent for any residential building shall be nine per cent on the total cost of such building and for any non-residential building it shall be twelve per cent. The total cost shall consist of the market value of the site in which the building is constructed, the cost of construction of the building and the cost of provision of anyone or more of the amenities specified in Schedule I of the Rent control Act ( as prevailing on the date of application for fixation of fair rent).

6. Who fixes the Fair Rent?
6.1. The Controller appointed as per the Rules framed under the Rent Control Act, shall on application made by the tenant or the landlord of a building and after holding an enquiry, fix the fair rent for such building.

7. How market value is calculated?

7.1. While calculating the market value of the site in which the building is constructed, that portion of the site on which the building is constructed and of a portion upto fifty per cent, of the vacant land, if any, adjacent to such building shall be taken into account. The excess portion of the vacant land, will be treated as amenity.
List of Amenities :
1. Air – Conditioner, 2. Lift, 3. Water –cooler, 4. Electrical heater, 5. Frigidaire, 6. Mosaic Flooring., 7. Side dadoos, 8. Compound walls, 9. Garden, 10. Over-head tank for water-supply, 11. Electric pump and motor for water-supply, 12.Playground, 13. Badminton and Tennis courts, 14.Sun-breakers, 15. Amenity referred to in the first proviso to sub-section (4) of Section 4, 16. Usufructs, if any, enjoyed by the tenant and 17. Features of special architectural interest.

8. How cost of construction of the building is calculated?
8.1. The cost of construction of the building including cost of internal water-supply, sanitary and electrical installations shall be determined with due regard to the rates adopted for the purpose of estimation by the Public Works Department of the Government for the area concerned. The Controller may, in appropriate cases, allow or disallow an amount not exceeding thrity per cent, of construction having regard to the nature of construction of the building. The Controller shall deduct from the cost of construction determined in the manner specified in clause (a), depreciation, calculated at the rates specified in Schedule II.
RATES OF DEPRECIATION
Type of buildings Rate of Depreciation P.A

(1) (2)

1. Building built in lime mortar and in which teak has been used throughout. 1 per cent

2. Buildings built partly of brick in lime mortar and partly of brick in mud and in which teak has been used. 1-1/2 per cent.

3. Buildings built in brick in mud and in which country wood has been used. 2 per cent.
4. Buildings which are inferior to those of class 3 with brick-in-mud unplastered walls and mud floors and in which cheap country wood has been used. 4 per cent.

The depreciation shall be calculated for each year on the net value arrived at after deducting the amount of depreciation for the previous year. The amount of depreciation shall in no case be less than ten per cent of the cost of construction of the building.
The actual depreciation of a building aged ‘n’ years is calculated by using the formula-
n
P= A (100-r/100)
Where A = total cost of construction of the building. R= rate of depreciation per annum. N= age of the building (i.e. the number of years); P= the final depreciated value of the building.
The amount of depreciation will be equal to (‘A’ – ‘P’) subject to a minimum of ten per cent of ‘A’.

9. How cost of provision of amenities is calculated?
9.1. The cost of provision of amenities in the case of any residential building shall not exceed fifteen per cent and in the case of any non-residential building shall not exceed twenty five per cent of the cost of the site and the cost of the construction.

10. Prevailing rent as a factor.

10.1. It cannot be denied that prevailing rent of similar building at the time of the application will be one of the circumstances which can be taken into account (Rayala Corporation vs. Syed Bawker & Company, 1957 (1) MLJ 241 at 243]. What rent the building would reasonably fetch if let out to another, would be a good principle to go by [Nagindas vs. Ratna Mudaliar, 1956 (2) MLJ SN 49].

11. Change in fair rent in what cases admissible (Section 5)?

11.1. When the fair rent of a building has been fixed or refixed under this Act, no further increase in such fair rent shall be permissible except in cases where some addition, improvement or alteration has been carried out at the landlord’s expense and if the building is then in the occupation of a tenant, at his request. The fair rent increased shall not exceed the fair rent payable under Rent Control Act for a similar building in the same locality with such addition, improvement or alteration and it shall not be chargeable until such addition, improvement or alteration has been completed:

11.2. Where, after the fair rent of a building has been fixed under this Act, there is a decrease or diminution in the accommodation or amenities provided, the tenant may claim a reduction in the fair rent as so fixed.

12. Improvements done by the landlord.

12.1. In determining the fair rent for a building on the basis of the capital value of the building, the tribunal has to take into account not only the cost of subsequent construction, improvement or additions made by the landlord but also the original purchase price of the building (Kundanmull vs. Dharmdas, 1958 (2) MLJ SN 46]. But the circumstances that the tenant spent a considerable amount on additions and improvements to the building cannot be taken into consideration in fixing the fair rent especially where there is express term in the lease that such improvements had to be handed over to the landlord at the end of the period when presumably they became the property of the landlord. [Tej singh vs. Soora Subramanian Chettiar, 1951 (1) MLJ 183]. If the building is developed on made so by substantial alternations additions or new construction then the fixation of fair rent under the section may have to be made on different considerations. [Miran Devi vs. Birbal Dass, 1977 (3) SCC 496 at 499]. Where a certain amount was fixed and paid for improvements covering installation of electricity connection as well as consumption, it is a factor that must be taken into consideration (Abdul Gaffor Saheb vs. Abdul Salem Saheb, 1954 (2) MLJ 391 at 394].

13. Increase over rent in certain cases.

13.1. Where the amount of tax and cess payable (including any new tax or cess which has become payable) by the landlord in respect of any building to a local authority for any half-year commencing on the 1st April, 1950, or on any later date exceeds the amount of the taxes and cess payable in respect thereof the same or any other local authority for the first ending on the 30th day of September 1946, or for the first complete half-year after the date on which the building was first let, whichever is later, the landlord shall be entitled to claim such excess from the tenant in additional to the rent payable for the building under this Act. However, such excess cannot not be recovered, if it has resulted from an increase of rent in respect of the building.

14. Can a Landlord claim or receive anything in excess of fair rent or an agreed rent?

14.1. Where the Controller has fixed, or refixed the fair rent of a building the landlord shall not claim, receive or stipulate for the payment of any premium or other like sum in addition to such fair rent but for the reasons specified above. The landlord may receive, or stipulate for the payment of, an amount not exceeding one month’s rent by way of advance.

14.2. Any premium or other like sum or any rent paid in addition to, or in excess of , such fair rent, whether before or after the date of the commencement of this Act, in consideration of the grant, continuance or renewal of the tenancy of the building after the date of such commencement, shall be refunded by the landlord to the person by whom it was paid or at the option of such person, shall be otherwise adjusted by the landlord.

14.3. Where before the fixation or refixation of the fair rent, rent has been paid in excess thereof, the refund or adjustment shall be limited to the amount paid in excess for the period commencing on the date of the application by the tenant or landlord

15. What shall be the rent payable when Fair Rent has not been fixed?

15.1. Where the fair rent of a building has not been fixed the landlord shall claim only the agreed rent. However, the landlord may receive, or stipulate for the payment of, an amount not exceeding one month’s rent, by way of advance. Any sum paid in excess of the agreed rent, whether before or after the date of the commencement of this Act in consideration of the grant, continuance or renewal of the tenancy of the building, shall be refunded by the landlord to the person by whom it was paid or, at the option of such person, shall be otherwise adjusted. Any stipulation in contravention to this shall be null and void.

16. Landlord liable to give receipt for rent or advance.

16.1. Every landlord who receives any payment towards rent or advance shall issue a receipt duly signed by him for the actual amount of rent or advance received by him. As per Rule 9 of the Tamil Nadu Buildings (Lease and Rent Control) Rules, 1974, the receipt may be in any form but shall contain the following particulars, namely, name of the tenant from whom or on whose behalf the rent or advance is received by the landlord; Amount of rent or advance received; In the case of rent, the rate at which and the period for which the rent is received; The particulars of the building (door number, street name, etc.) in respect of which the rent or advance is paid; The name and address of the landlord by whom or on whose behalf the receipt is given.

17. Landlord not to interfere with amenities enjoyed by tenant (Section 17).

17.1. No landlord shall, without just or sufficient cause, cut off or withhold or cause to be cut off or withheld any of the amenities (inclusive of supply of water, electricity, passages, staircases, light, lavatories, lifts and conservancy or sanitary services. ) enjoyed by the tenant or were in existence during the previous tenancy.

17.2. A tenant in occupation of a building may, if the landlord has contravened the provisions of this section, make an application to the Controller complaining of such contravention and seek an interim order, directing the landlord to restore the amenities immediate. Such interim order may be passed without giving notice to the landlord.

17.3. If the amenities are not restored within seven days from the date of the interim order, the Controller may permit the tenant to restore the amenities at his own cost and recover the cost of the expenses incurred by the tenant in respect of restoration of such amenities from the rent payable to the landlord in such monthly instalments as may be specified by the Controller.

17.4. The Controller may, in his discretion, direct that compensation not exceeding fifty rupees
(a) be paid to the landlord by the tenant, if the application under sub-section(2) was made frivolously or vexatiously;
(b) be paid to the tenant by the landlord, if the landlord had cut off or withheld the amenities or was in any way responsible for the amenities being cut off or withheld frivolously or vexatiously.

18. What is the remedy available to the Tenant when the Land Lord refuses to receive the Rent and asks the tenant to vacate?
18.1. Where a landlord refuses to accept, or evades the receipt of, any rent lawfully payable to him by a tenant in respect of any building, the tenant may, by notice in writing, require the landlord to specify within ten days from the date of receipt of the notice by him, a bank situated in the city, town or village in which the building is situated or if there is no such bank in such city, town or village, within five kilometers of the limits thereof into which the rent may be deposited by the tenant to the credit of the Landlord.

18.2. It shall be open to the landlord to specify from time to time by a written notice to the tenant and subject to the proviso aforesaid, a bank different from the one already specified by him under this sub-section.

18.3. If the landlord specifies a bank as aforesaid, the tenant shall deposit the rent in the bank and shall continue to deposit in it any rent which may subsequently become due in respect of the building.

18.4. If the landlord does not specify a bank as aforesaid, the tenant shall remit the rent to the landlord by Money Order, after deducting the money order commission.

18.5. If the landlord refuses to receive the rent remitted by Money Order, the tenant may deposit the rent before the Rent Controller and continue to deposit with him any rent which may subsequently become due in respect of the building.

19. Right of tenant to deposit rent in certain cases(Section 9.)

19.1. Where the address of the landlord or his authorized agent is not known to the tenant, he may deposit the rent lawfully payable to the landlord in respect of the building, before the Controller in such manner as may be prescribed, the continue to deposit any rent which may subsequently become due in respect of the building, before the Controller and in the same manner until the address of the landlord or his authorized agent becomes known to the tenant.

19.2. Where any bona fide doubt or dispute arises as to the person who is entitled to receive the rent for any building, the tenant may deposit such rent before such authority and in such manner as may be prescribed and shall report to the Controller the circumstances under which such deposit was made by him, and may continue to deposit any rent which may subsequently become due in respect of the building before the same authority and in the same manner until the doubt is removed or the dispute is settled by the decision of a competent Court or by a settlement between the parties or until the Controller makes an order under clause (b) of sub-section (4), as the case may be.

20. When can a Landlord Evict a tenant? (Section 10).
20.1. A Landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. A tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with either of the following Conditions.
(i) The tenant has not paid or tendered the rent due by him in respect of the building, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable.
a. However, if the Controller is satisfied that the tenant’s default to pay or tender rent was not willful, he may, give the tenant a reasonable time, not exceeding fifteen days, to pay or tender the rent due by him to the landlord and on such payment or tender, the application shall be rejected.
b. Default to pay or tender rent shall be construed as willful, if the default by the tenant in the payment or tender of rent continues after the issue of two month’s notice by the landlord claiming the rent
(ii) The tenant has without the written consent of the landlord, transferred his right under the lease or sub-let the entire building or any portion thereof, when the lease does not confer on him any right to do so, or has used the building for a purpose other than that for which it was leased.
(iii) The tenant has committed or caused to be committed such acts of waste as are likely to impair materially the value or utility of the building.
(iv) The tenant has been convicted under any law for the time being in force of an offence of using the building or allowing the building to be used for immoral or illegal purposes.
(v) The tenant has been conducting in a manner that cause nuisance to the occupiers of other portions in the same building or of buildings in the neighbourhood.
(vi) Where the building is situated in a place other than a hill-station, the tenant has ceased to occupy the building for a continuous period of four months without reasonable cause
(vii) The tenant has denied the title of the landlord or claimed a right of permanent tenancy and that such denial or claim was not bona fide
(viii) in case it is residential building, if the landlord requires if for his own occupation or for the occupation of any m ember of his family and if he or any member of his family is not occupying a residential building of his own in the city, town or village concerned;
(ix) in case it is a non-residential building which is used for the purpose of keeping a vehicle or adapted for such use, if the landlord requires it for his own use or for the use of any member of his family and if he or any member of his family is not occupying any such building in the city, town or village concerned which is his own;
(x) In case it is any other non-residential building, if the landlord or any member of his family is not occupying for purpose of a business which he or any member of his family is carrying on, a non-residential building in the city, town or village concerned which is own. But a person who becomes a landlord after the commencement of the tenancy by any special Agreement shall not be entitled to apply under this clause before the expiry of three months from the date on which the Agreement was registered:

(xi) Where the landlord of a building, whether residential or non-residential, is a religious, charitable, educational or other public institution, it may, if the building is required for the purpose of the institution, apply to the Controller, for an order directing the tenant to put the institution in possession of the building.
(xii) A landlord who is occupying only a part of a building, whether residential or non-residential, may, , apply to the Controller for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession, if he requires additional accommodation for residential purposes or for purposes of a business which he is carrying on, as the case may be.
a. Where the tenancy is for a specified period agreed upon between the landlord and the tenant, the landlord shall not be entitled to apply under this sub-section before the expiry of such period.
b. The Controller shall reject the application if he is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord. Otherwise, the Controller may give the tenant a reasonable time for putting the landlord in possession of the building and may extend such time so as not to exceed three months in the aggregate.
(xiii) Where the landlord has been or is a member of the Armed Forces and is released or has retired from service and the building is bona fide required for his residence or is stationed at a place where on account of military exigencies, he cannot live with his family or dies on active duty and the building is bona fide required for the residence of his family, the Controller shall, on application made by the landlord or the member of his family, if he is satisfied that the claim of the landlord or the member of his family is bona fide, pass on order directing the tenant to put the landlord or the member of his family in possession of the building
“member of the Armed Forces” means a person in the service of the Air Force, Army or Navy of the Union of India and includes a seaman and “seaman” means every person including a master, pilot or apprenticed employed or engaged as a member of the crew of a ship or a sailing vessel to which the Merchant Shipping Act, 1958 (Central Act 44 of 1958), applies.
(xiv)No order for eviction shall be passed against any tenant who is engaged in any employment or class of employment notified by the Government as an essential service for the purpose of this sub-section, unless the landlord is himself engaged in any employment or class of employment which has been so notified, or in respect of any building which has been let for use as an educational institution recognized by the Government or any authority empowered by them in this behalf so long as such recognition continues and is actually being used as such.

21. Recovery of Possession by landlord for repairs / reconstruction (S.14)
21.1. On an application made by a landlord, the Controller shall, if he is satisfied-
(a) that the building is bona fide required by the landlord for carrying out repairs which cannot be carried out without the building being vacated; or
(b) that the building is bona fide required by the landlord for the immediate purpose of demolishing it and such demolition is to be made for the purpose of erecting a new building on the site of the building sought to be demolished,
pass an order directing the tenant to deliver possession of the building to the landlord before a specified date.

21.2. No order directing the tenant to deliver possession of the building under this section shall be passed
(a) on the ground unless the landlord gives an undertaking that the building shall, on completion of the repairs, be offered to the tenant, who delivered possession in pursuance of an order for his reoccupation before the expiry of three months from the date of recovery of possession by the landlord, or before the expiry of such further period as the Rent Controller may, for reasons to be recorded in writing, allow; or
(b) on the grounds specified in clause (b) of sub-section (1), unless the landlord gives an undertaking that the work of demolishing any material portion of the building shall be substantially commenced by him not later than one month and shall be completed before the expiry of three months from the date he recovers possession of the entire building or before the expiry of such further period as the Controller may, for reasons to be recorded in writing allow:

21.3. The landlord who has recovered possession of the building for repairs cannot convert a residential building into a non-residential building or a non-residential building into a residential building unless such conversion is permitted by the Controller at the time of passing an order

21.4. When an Order for handing over possession is made such tenant shall be deemed to continue to be the tenant, but the landlord shall not be entitled to any rent for the period commencing on the date of delivery of possession by the tenant to the landlord and ending with the date on which the building is offered to the tenant by the landlord in pursuance of the undertaking.

Note: Making out a case under the Rent Act for eviction of the tenant by itself is sufficient and it is not obligatory to found the proceeding on the basis of the determination of the lease by issue of notice in accordance with section 106 of the Transfer of Property Act (Dhanapal Chettiar vs. Yesodai Ammal, 1979 (4) SCC 214 at 229].

22. Tenant to re-occupy after repairs (Section 15).
22.1. Where the landlord recovers possession he shall, within two months before the date on which the work of repairs is likely to be completed, give notice to the tenant of the date on which the said work will be completed. Within fifteen days from the date of receipt of such notice, the tenant shall intimate to the landlord his acceptance of the building offered for his re-occupation and if the tenant gives such intimation, the landlord shall within thirty days from the date of completion of the work of repairs put the tenant in possession of the building on the original terms and conditions. If the tenant fails to give such intimation, his right to re-occupy the building shall terminate.

22.2. If after the tenant has delivered possession, the landlord fails to commence the work of repairs within one month from the date of such delivery, or fails to complete the work before the expiry of three months form the date of such delivery, or before the expiry of the further period allowed or having completed the work fails to put the tenant in possession of the building, the Rent Controller may, on the application of the tenant made within thirty days from the date of such failure, order the landlord to put the tenant in possession of the building on the original terms and conditions; and on such order being made, the landlord and any person who may be in occupation shall put the tenant in possession of the building.

23. Tenants to occupy if the building is not demolished (Section 16)
23.1. Where an order directing delivery of possession has been passed by the Controller and the work of demolishing any material portion of the building has not been substantially commenced by the landlord within the period of one month in accordance with his undertaking, the tenant may give the landlord notice of his intention of occupy the building the possession of which he delivered. If within fifteen days from the date of receipt of such notice, the landlord does not put him in possession of the buildings on the original terms and conditions, the tenant may make an application to the Controller within eight weeks of the date on which he put the landlord in possession of the building. The Controller shall order the landlord to put the tenant in possession of the building on the original terms and conditions.
23.2. Where in a pursuance of an order passed by the Controller, any building is totally demolished and a new building is erected in its place, all the provisions of this Act shall cease to apply to such new building for a period of five years from the date on which the construction of such new building is completed and notified to the local authority concerned.

23.3. Where the tenant denies the title of the landlord or claims right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in the said sections, notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.

23.4. But these conditions shall not apply to a tenant whose landlord is the Government. Further, By G.O. Ms. No. 1998, dated 12th August, 1974, the Government has exempted all the buildings owned by the Hindu, Christian and Muslim Religious Trust and Charitable Institutions from all the provisions of the Act. By G.O. Ms. No. 2000, dated 16th August 1976, the Government in supersession and modification of the order in G.O. Ms. No. 1998, dated 12th August 1974 have exempted all the buildings owned by the Hindu, Christian and Muslim Religious Public Trusts and Public Charitable Trusts from all the provisions of the Act. [See Notification at the end]. The religion does not come into the picture with regard to the charitable institution as provided for in the G.O. and in the context of the G.O. the religion has relevance only in relation to religious trusts and consequently the expression “Hindu, Christian and Muslim” will not qualify the expression “Charitable institutions” and will qualify only the expression religious trusts [Suryaprakash Gupta vs. The Madras Piece Goods Merchants Charitable Trust, 93 LW 132 at 134].

24. Can an evicted tenant be put back in possession?
24.1. Where a landlord who has obtained possession of a building in pursuance of an order under sub-section (3) or subsection 3-A of section 10 of the Rent Control Act, does not himself occupy it within one month of the date of obtaining possession or having so occupied it, vacates it without reasonable cause within six months of such date, the tenant who has been evicted may apply to the Controller within one month for an order directing that he shall be restored to possession of the building and the Controller shall make an order accordingly.

24.2. This clause shall not apply to a residential building the monthly rent of which does not exceed twenty – five rupees or to a non – residential building the monthly rent of which does not exceed fifty rupees.

25. Whether Tenant against whom a petition for eviction has been file without proper reason claim compensation?
25.1. Where the Controller is satisfied that any application made by a landlord for the eviction of a tenant is frivolous or vexatious, the Controller may direct that compensation not exceeding fifty rupees be paid by such landlord to the tenant.

25.2. Any person aggrieved by an order passed by the Controller may, within fifteen days from the date of such order, prefer an appeal in writing to the Appellate Authority having jurisdiction.

25.3. The Appellate Authority shall call for the records of the case from the Controller and after giving the parties an opportunity of being heard and, if necessary, after making such further inquiry as he thinks fit either personally or through the Controller, shall decide the appeal.


List of reference:
The major reference source is the Comentaries on theT.N. Buildings (Lease and Rent Control) Act by P.B. Ramanujam, Advocate.
1. Nagindas Ramdas vs. Dalpatram Iccharam, 1974 (1) SCC 242 at 248
2. Kundanmull vs. Dharmdas, 1958 (2) MLJ SN 46
3. Miran Devi vs. Birbal Dass, 1977 (3) SCC 496 at 499
4. Abdul Gaffor Saheb vs. Abdul Salem Saheb, 1954 (2) MLJ 391 at 394
5. Dhanapal Chettiar vs. Yesodai Ammal, 1979 (4) SCC 214 at 229
6. Dhanpal Chettiar vs. Yadodai Ammal, 1979 (4) SCC 214.
7. Pals Theatres vs. Abdul Gafoor Saheb, 1972 (2) MLJ 554 at 563
8. Haji Abdullah Sait vs. Sanjeevi Rao, 1979 (2) MLI 413 at 433)
9. K. Kaliammal and other vs. Athi V. Ramachandra and others, 1983 MLJ (II)252 10. Rayala Corporation vs. Syed Bawker & Company, 1957 (1) MLJ 241 at 243
11. Nagindas vs. Ratna Mudaliar, 1956 (2) MLJ SN 49
12. Tej singh vs. Soora Subramanian Chettiar, 1951 (1) MLJ 183

rbi on atm

Date: Mar 10, 2008
Customer charges for use of ATMs for cash withdrawal and balance enquiry

RBI/2007-2008/260
DPSS No.1405 / 02.10.02 / 2007-2008
March 10, 2008
The Chairman / Chief Executive Officer
(All Scheduled commercial banks including RRBs)
Dear Sir
Customer charges for use of ATMs for cash withdrawal and balance enquiry
1. Automated Teller Machines (ATMs) have gained prominence as a delivery channel for banking transactions in India . Banks have been deploying ATMs to increase their reach. While ATMs facilitate a variety of banking transactions for customers, their main utility has been for cash withdrawal and balance enquiry. As at the end of December 2007, the number of ATMs deployed in India was 32,342. Commensurate with the branch network, larger banks have deployed more ATMs. Most banks prefer to deploy ATMs at locations where they have a large customer base or expect considerable use. To increase the usage of ATMs as a delivery channel, banks have also entered into bilateral or multilateral arrangements with other banks to have inter-bank ATM networks.
2. It is evident that the charges levied on the customers vary from bank to bank and also vary according to the ATM network that is used for the transaction. Consequently, a customer is not aware, before hand, of the charges that will be levied for a particular ATM transaction, while using an ATM of another bank. This generally discourages the customer from using the ATMs of other banks. It is, therefore, essential to ensure greater transparency.
3. International experience indicates that in countries such as UK , Germany and France , bank customers have access to all ATMs in the country, free of charge except when cash is withdrawn from white label ATMs or from ATMs managed by non-bank entities. There is also a move, internationally, to regulate the fee structure by the regulator from the public policy angle. The ideal situation is that a customer should be able to access any ATM installed in the country free of charge through an equitable cooperative initiative by banks.
4. In view of this, RBI had placed on its website an Approach paper and sought public comments. The comments received have been analysed. Based on the feed back a framework of service charges would be implemented by all banks as under:

Sr.No. Service Charges
(i) For use of own ATMs for any purpose Free (with immediate effect)
(2) For use of other bank ATMs for balance enquiries Free (with immediate effect)
(3) For use of other bank ATMs for cash withdrawals No bank shall increase the charges prevailing as on December 23, 2007 (i.e. the date of release of Approach Paper on RBI website)
Banks which are charging more than Rs.20 per transaction shall reduce the charges to a maximum of Rs.20 per transaction by March 31, 2008
Free - with effect from April 1, 2009.


5. For the services at (1) and (2) above, the customer will not be levied any charge under any other head and the service will be totally free.
6. For the service number (3) the charge of Rs.20/- indicated will be all inclusive and no other charges will be levied to the customers under any other head irrespective of the amount of withdrawal.
7. The service charges for the following types of cash withdrawal transactions may be determined by the banks themselves:
(a) cash withdrawal with the use of credit cards
(b) cash withdrawal in an ATM located abroad.
8. Please acknowledge the receipt of the circular. A copy of the circular issued to your branches on this subject may please be submitted to us in due course.
Yours faithfully
(Arun Pasricha)
General Manager

Opinion

22.08.2006

Opinion : Sought by Mr.Somasundaram residing at Dindugal regarding payment of maintenance in divorce case through “udavikaram” magazine August 2006 issue

Query : 1. Should a disabled person having only passed +2 and D.Co.Op pay maintenance to the wife with B.A.qualification

2. Whether there is any provision in the Persons With Disabilities… Act in this regard. If not can an amendment in this regard be made in the Act?

Facts underlying the query:

1. The Queriest submits that he suffers paralysis in his right hand due to an accident and he is therefore a disabled person having first passed +2 and D.Co.Op. He is employed in a Co-operative society for a meager wages.

2. He further states that he was married on 04.12.2003 at the age of 37 and the marriage lasted only for about seven months. The matrimonial dispute is pending before the Dindugal Court. It appears that his wife has claimed maintenance from him and he wants to know whether maintenance can be avoided on the ground of his disability.

3. It is first necessary to understand the purpose of the Persons With Disabilities Act. The act has been brought into force to ensure integration of the persons with disability with the mainstream society through various measures both right oriented and welfare oriented. The Persons With Disabilities Act has nothing to do with this and no amendments can be suggested in this regard

4. As per law maintenance of wife, children, aged parents and other dependent kind is a bounden duty of every man in our country. Neglect of this duty is punishable under law. No one can use his or her disability to shed his duty.

5. The querist has to pay the maintenance as ordered by the Court. However, it is for the Court to decide the quantum of maintenance after taking various factors into consideration and hence he can put forth his case before the Court.