REVENGE PORN- ONLINE ABUSE AND INDIAN LAW

By: Vaishali Jain

INTRODUCTION

Revenge pornography is described as “dissemination or posting sexually explicit media without the consent of the individual in the media, especially where the intent is to shame, humiliate and frighten the person or otherwise cause them harm.”[1]

Revenge porn is an act of invasion of privacy. It is often done by ex-partners/former lovers who are seeking vengeance after a breakup by sharing sexually explicit images and obscene videos.

The patriarchal nature of Indian society takes the approach of slut-shaming and victim blaming which inflicts anxiety and emotional distress to the victim of revenge porn. The menace of victim shaming discourages and prevents the victims to report the incident to the police and register a FIR. In some instances, victims commit suicide due to the bullying and harassment.[2]

LEGAL REVENGE AGAINST REVENGE PORNERS

Indian does not have an explicit law to deal with revenge porn. The legal provisions to cover the crime are entailed in 2 statutes namely, the Information and Technology Act, 2000 (hereinafter referred to as ‘IT Act’) and the Indian Penal Code, 1860. (hereinafter referred to as ‘IPC’)

Section 66E IT Act- Punishment for violation of Privacy

It is stated in the section that any person who intentionally or knowingly captures, publishes or transmits the image of a private area of any person without consent, is in violation of privacy. The punishment shall be imprisonment which may extend to 3 years or a fine upto 2 lakhs.

Section 67A IT ActPunishment for publishing transmitting materially containing sexually explicit act in electronic form.

Section 292 IPC- Circulation and distribution of obscene material [which is lascivious or appeals to the prurient interest].

Section 354C IPC- Voyeurism

The section states that if any man watches or captures a woman engaged in a private act and disseminates such image, he shall be punished with imprisonment upto 3 years or fine.

Section 509 IPC- Act intended to outrage the modesty of a woman.

CASES OF REVENGE PORN IN INDIA

  • State of West Bengal V. Animesh Boxi[3]

The accused was in a relationship with the victim and acquired intimate pictures from the victim under the guise of promise to marry her. When the victim ended the relationship, the accused posted pictures and videos on a pornographic website with her name. The accused was sentenced to five years in jail and fined Rs.9000 by a West Bengal Sessions Court for uploading objectionable pictures of the girl without her consent. The Court also went a step further and instructed the State government to treat the victim as a rape survivor and compensate her accordingly.

  • RE: Prajwala Letter dates 18.02.15 Videos of Sexual Violence and Recommendation[4]

NGO Prajwala wrote a letter enclosing two rape clips being disseminated and circulated on the internet. The Supreme Court took a suo moto writ petition based on the letter. The Court ordered Government to finalize a ‘Standard Operating Procedure’ for cyber police portals who are entrusted to handle complaints involving child pornography, child sexual abuse material, rape and gang rape videos and obscene content.

  • Subhranshu Rout V. State of Odisha[5]

The perpetrator and the victim were in a relationship. The attacker went to the victim’s house one day and assaulted her while she was alone at home. He also recorded the horrendous incident on his cell phone. The perpetrator threatened the victim that if she disclosed the incident to anybody; he would release the photos and videos to public. When the victim narrated the incident to her parents, the perpetrator uploaded all the objectionable photos on Facebook. The Court while refusing to grant bail to the perpetrator noted that “allowing such objectionable photos and videos to remain on social media without her consent is a direct affront on a woman’s modesty and right to privacy.”

The Hon’ble Court also emphasised on the significance of ‘Right to be Forgotten’ (getting the photos deleted from the server permanently) in the context of right to privacy.

CONCLUSION

Revenge porn victims become easy targets of stalking, harassment and rape threats. They suffer dreadful consequence such as reputational harm, emotional injury and loss of job prospect.[6]  Release of intimate pictures and videos online can inflict grave psychological harm to the victim. A provision to provide counselling to the victim during the trial can help victims in coping up with the adverse effects of the crime.

A victim-sensitive approach from the police can help in enhancing the chances of victim to report the crime and register FIR.[7] Sensitization of law enforcement, prosecutors and judges can prevent secondary victimization.[8] Change in the societal outlook and a victim-oriented environment can go a long way in helping the victim to recover from the dreaded incident. Furthermore, educating children about cyberbullying and the consequences of online behaviour will ensure that they grow up to be good and responsible citizens.[9]


[1] Thomas Lonardo, Tricia Martland, Doug White, “A Legal Examination Of Revenge Pornography And Cyber Harassment”, The Journal of Digital Forensics, Security And Law, [2016], Available at: https://commons.erau.edu/jdfsl/vol11/iss3/8/

[2] Tegan Starr and Tiffany Lavis, “Perceptions Of Revenge Pornography And Victim Blame”, International Journal Of Cyber Criminology, [January,2018], Available at: https://www.researchgate.net/publication/335976380_Perceptions_of_Revenge_Pornography_and_Victim_Blame

[3] State of West Bengal v Animesh Boxi, C.R.M. No. 11806 of 2017

[4] 2018 SCC OnLine SC 2111

[5] 2020 SCC OnLine Ori 878

[6] Clay Calvert, “Revenge Porn and Freedom of Expression: Legislative Pushback To An Online Weapon of Emotional And Reputational Destruction”, Fordham Intellectual Property, Media and Entertainment Law Journal, [2014], Available at: https://core.ac.uk/download/pdf/144230647.pdf

[7] Chitrangada Sharma, Revenge Porn: Offending and Victimization in Digital Age, National Law University, [2019], Available at: http://14.139.58.147:8080/jspui/bitstream/123456789/299/1/32LLM18.pdf

[8] Id

[9] Justice J.S. Verma, Justice Leila Seth, Gopal Subramanium, “Report Of The Committee on Amendments To Criminal Law”, Justice Verma Committee, [January 23, 2013], Available at: https://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20report.pdf


FAVOUR ONE, FAVOUR ALL- MFN UNDER GATT AND GATS

By- Anjanee Goel

Non-discrimination is a key rule of the multilateral trading framework and is perceived in the Preamble to of the WTO Agreement as a key instrument to accomplish the goals of the WTO. WTO nations communicate their aspiration to eradicate discriminatory management in international trade relations through the preamble. Non discrimination in the WTO is personified by two standards, namely, the most favoured nation (MFN) treatment and the national treatment obligation. A country grants the most favoured nation clause to a different country in case if it is keen in increasing trade with that nation.

Underneath the WTO agreements, nations cannot normally differentiate between their trading associates. If one nation awards any other nation a special favour, for instance, a inferior customs duty rate for one of their goods, then it will have to do the equivalent for all WTO nations.

MFN under GATT (article 1)

The universal consequence of Article I.1 is to construct the responsibility among WTO Members to provide each others’ like products the most excellent existing market access opportunities with no discrimination in fact or in law.

A detailed reading of the provision reveals that the key elements of the MFN principle are:

  1. Any advantage, favour of privilege covered in Article I.1.

In EC Bananas case, license allocation rules for imports, procedural as well as regulatory prerequisite were held to be advantages. In Canada-Autos Case, a wider Scope of the words ‘advantage’ and ‘product’ in clause were given.

  • Like products.

In Spanish Unroasted Coffee case, criteria to determine likeness of product were provided:

  • the characteristics of the products;
  • their end-use;
  • Tariff regime of other members; and
  • Consumers’ tastes and habits.
  • The immediate and unconditional grant of the advantage at issue to the like products concerned.

In Indonesia Autos Case, tax benefits and custom duties were held to be restrictive on achieving a certain local content value for the completed car.

Exceptions (GATT)

  1. General Exceptions

Article XX of GATT 1994 perceives that legislatures may need to apply and implement measures for purposes, for example, the insurance of public ethics; human animal or plant life and wellbeing; and the protection of nationwide treasures.

In Shrimp and turtle case the appellant party stated that Article XX (b) and (g) were implied only to forestall maltreatment of environmental protection laws to weaken the multilateral trading framework. Measures which were taken by the US qualified for temporary justification under this article yet failed to meet the essentials of the Chapeau.

  • Security exceptions

GATT Article XXI expresses that a WTO Member is permitted to take any action which it finds vital for the protection of its fundamental security interests or in execution of its responsibilities under the United Nations Charter for the preservation of universal harmony and security.

  • Balance of payment exceptions
  • Regional Integration (GATT article XXIV) through custom associations or free trade territories liberalizes trade amongst nations within the regional areas, while keeping up the trade barriers with nations outside the region or districts.
  • S&D for developing countries- Part 4 of the GATT incorporates articles on the idea of non-reciprocity in trade negotiations among developed and budding nations, that is, when developed countries award trade concessions to budding nations they ought not to anticipate the developing countries to make coordinating proposals in consequently.
  • GATT guidelines on safeguards are in Article XIX and XII. Article XII of the GATT Agreement accommodates the introduction of provisional limitations to protect the balance-of-payments.

MFN under GATS (article 2)

Under GATS, if a nation permits foreign competition in a segment, equivalent opportunities in that sector ought to be provided to service providing organizations from all other WTO nations. This is applicable regardless of whether the nation has made no particular commitment to provide foreign organizations access to its markets underneath the WTO.

MFN is applicable on all services; however some special provisional exceptions have been permitted. When GATS came into enforcement, various nations already had privileged agreements in services that they had marked with trading associations. WTO members felt it was important to keep up with these preferences briefly. They gave themselves the option to keep giving increasingly favorable treatment to specific nations in particular services by listing “MFN exceptions” alongside their first sets of responsibilities.

Exceptions (GATS)

Aside from some universally applicable exemption clauses there are basically three instruments that take into consideration exceptions from, or provide overrides over, the MFN obligation in services buying-selling:

  1. Economic Integration Agreements (EIAs) in accordance with Articles V and V bis of the GATS;
  2. Recognition measures identified with standards, certificates etc.  under  Article VII; and
  3. Exceptions under MFN treatment as accessible under Article II: 2 and the related Annex. 

Conclusion

  1. Reduces transaction costs
  2. Promotes additional reciprocal liberalization
  3. Increased effectiveness in the world economy
  4. Stabilization of the Multilateral Trading framework
  5. Reduction of the expense of maintaining the Multilateral Trading framework

ANTI DUMPING MEASURES UNDER GATT, 1994

By- Anjanee Goel

The law of World Trade Organization (WTO) doesn’t forbid dumping. In reality, since costs of products are normally decided by private organizations, ‘dumping’ all by itself is not controlled by WTO law. 

‘Dumping’ is the bringing of a product onto the market of another nation (or customs region) at a cost not same but less than the typical value of that product.  Any item can be considered ‘dumped’ where the export cost of that product is less than its typical price, that is, the similar cost in the normal course of buying-selling for the ‘like product’ bound for consumption in the exporting nation. 

Nonetheless, Dumping is to be ‘denounced’ if it becomes the cause of injury to the domestic business of the importing nation. The embodiment of the WTO principles on dumping is that Members are permitted to take certain measures, which are in any case WTO-conflicting, to ensure protection to their domestic industry from the adverse impacts of dumping. 

Article VI of the GATT 1994 describes, in significant part, that: The members perceive that dumping is to be denounced provided it causes or compromises material injury to a built up industry in the region of a member or significantly hinders the foundation of a domestic industry. While attempting to cure dumping, anti-dumping agreement further expounds on the substantive and procedural laws to be followed.

Normally alluded to as the Anti-Dumping Agreement, the dumping and anti-dumping measures by law of WTO are set in GATT 1994- Article VI and in the WTO Agreement on Implementation of Article VI.

In the case of US-Hot-rolled Steel, it was held that Article 2.6 of the Anti-Dumping Agreement characterizes the ‘like product’ as a product which is indistinguishable, i.e. comparable in all regards to the product viable, or in the nonexistence of such a product, a different item which, even though not alike in all aspects, has qualities intently resembling those of the product under deliberation.

For ascertaining normal cost, Article 2.1 of the Anti-Dumping Agreement characterizes the ‘normal value’ of an item as: “…the equivalent cost, in the normal course of buying-selling, for the like product when bound for utilization in the exporting nation”.

The skillful authorities must build up the existence, or danger, of injury to the domestic industry; and the casual connection between the dumping and the injury for the purpose of determining injury.  Article 3.1 of the Agreement on anti-dumping necessitates that a injury determination to the domestic manufacturing business be founded on positive proof and include an objective assessment of both: (a) the quantity of imports dumped and the impact of the imports dumped on costs in the domestic marketplace for like items; and (b) the subsequent effect of these imports on domestic makers of such items.

Levying of anti-dumping measures is made simply after an examination started and directed as per the Agreement based on prior legislation that has been appropriately notified to the WTO, an assurance is made that there is dumping; the domestic industry creating the like product in the importing nation is experiencing injury; and there is a causal connection between the dumping and the injury.

It is not obligatory for a WTO member country to institute anti- dumping legislation, though if the a Member government settles on the policy decision to have the choice of commanding anti-dumping measures, Article 1 of the Anti-Dumping Agreement oversees such measures and indicates that an anti-dumping measure will be made applicable distinctly under the situations provided in accordance with Article VI of GATT 1994 and as per examinations started and led in accordance with the articles of this Agreement.

Article 7 of the Agreement may appear as a provisional obligation or, ideally, a security, by money deposit or bond, equivalent to the amount of the preliminarily decided margin of dumping.  There must be a preliminary agreed determination of dumping, causation and injury.  The examining authorities must decide that such a measure is important to forestall injury being caused at some point in the investigation. It cannot be applied sooner than sixty days following the inception of the examination.

Application will be limited to brief periods not surpassing 4 months on verdict of the authorities concerned, upon demand by exporters on behalf of a considerable percentage of the trade in question, to a period not surpassing six months.

Article 18.1 of the Anti-Dumping Agreement states that no particular action against dumping of exports from another member can be taken aside from the provisions of GATT, 1994 and it efficiently limits anti-dumping measures to conclusive anti-dumping duties; temporary measures; and cost undertakings.

Article 11 of the Anti-Dumping Agreement sets up rules overseeing the duration of anti-dumping measures and provides for a pre-requisite for the occasional review of any continuing need for the imposition of anti-dumping measures.  An anti-dumping duty will stay in force just as long as and to the degree of extend important to balance dumping that is the cause of injury.


FACILITIES ADMISSIBLE UNDER INTERSTATE MIGRANT’S WORKMEN ACT, 1979

By- Diksha Gupta

Section 15 of the Act states the Journey allowance payable to the migrant worker. A remittance of at least the cost from the residence of the labourer in his State to the workplace in the other State must be paid by the contractor, both for the outward and return passages and alongside this the workman is considered to be at work even though he is in such journeys, he is entitled for the payment of wages for the said period.

Section 14 states that the displacement allowance has to be paid to every migrant by the contractor at the time of recruitment. An allowance equal to 50% of the monthly wages or Rs. 75, whichever is higher, has to be paid. This amount is non-refundable and is paid in addition to the wages payable to him.

Section 13 accommodates the wage rates and conditions of services of inter-State migrant workmen. It states as follows:

(1) The holiday hours of work, pay rates and other conditions of service of an inter-State migrant workman shall,

(a) be same to that of any other worker in the establishment performing similar nature of duties as that of the migrant worker.

b) or as the case may be, prescribed by the appropriate Government:

It is further stated that every migrant worker has to be paid at least the wages fixed under the Minimum Wages Act, 1948.

(2) The wages payable under this section has to be paid in cash.

Section 16 provides some other facilities that are provided to the migrant workers. It states that it is the obligation of a contractor, who is employing inter-State migrant workman for work,

(a) To look after regular imbursement of wages to such labourers;

(b) To protect equivalent pay for equal work regardless of gender;

(c) to safeguard proper working conditions to such workmen taking into consideration the fact that the workman is required to work in a State different from their own State;

(d) To provide suitable residential place to such workmen in the course of their employment.

(e) To make available the prescribed health check facilities to the workers, free of cost;

(f) To provide such shielding clothing to the employees as may be prescribed; and

(g) In case of any lethal mishap or serious bodily injury to any such labourer, to report to the predefined authorities of both the States and furthermore the closest relative of the workman.

IMPORT LICENSING PROCEDURES IN INDIA

By- Diksha Gupta

GATT Article VIII (entitled Fees and Formalities connected with Importation and Exportation) deals with import licensing procedures in a non-specific manner.
GATT Article X mandates the members to issue and administer the regulations, laws, judicial decisions, and administrative rulings of general application, including those relating to the requirements on imports or exports in an even, fair, and reasonable manner.

Import licensing is a regulatory procedure that expresses that so as to import products one needs to present an application or other documents, aside from those required for customs purposes, to the significant administrative body.

On 1 January 1980, it was entered into force with an objective to prevent import licensing procedures from unreasonable hampering in international trade. Only those countries which had signed and ratified it are indebted under this agreement. The Agreement was revised during Uruguay Round to strengthen the disciplines on transparency & notifications and was binding on all the WTO members & was entered into force on 1 January 1995.

The Tokyo Round Import Licensing Code covers non-tariff measures that were concluded during the multilateral trade negotiations (1973-1979).

Import Licensing is categorised as follows:

  1. Automatic import licensing
  2. Non-automatic import licensing

The main objectives of the Agreement are to-

  1. Avert systems applied for yielding import licenses for having in themselves, prohibitive or distortive consequences on imports.
  2. Ease out and bring transparency to import licensing procedures,
  3. confirm their fair and equitable application and administration,

Automatic import licensing

Article 2.1 characterizes Automatic import licensing as import licensing where the authorization of the application is permitted in all cases.

Article 2.2 (a) states that Licence applications ought to be approved promptly or within 10 working days on the receipt of use.  

Automatic import licensing is important in cases where no other appropriate procedure is available.

Article 2.2 (b) states that as soon as the circumstances which have given rise to it stop prevailing, they have to be removed.

Conditions:

  1. Any individual who satisfies the legitimate requirements is equally qualified to apply for and acquire import licenses.
  2. Automatic licensing procedures are to be administered in a manner so that they don’t have any restrictive effects on imports.
  3. No discrimination among those who apply for automatic licenses.

Committee on Import Licensing   

A Committee on Import Licensing which is open to all Members has been established under Article 4 which meets to consult on matters relating to the operation of the Agreement or the persistence of its objectives.

Non-automatic import licensing

It administers trade restrictions that are justified within the WTO legal framework. Article 3.1 defines Non-automatic import licensing as a license which do not fall in the category of automatic import licensing

INTRODUCTION TO INTERNATIONAL ARBITRATION

By- Anjanee Goel

Arbitration is mode of resolving the dispute between parties outside of court. It is a private adjudication system and the decisions from such disputes under arbitration are final and binding in national courts.

The parties to the suit decide whether to go for arbitration and whether the type would be international arbitration or ad-hoc arbitration. Parties also have the freedom to choose rules, place and language of arbitration.

The freedom of choosing jurisdiction is to prevent conflict and biasness with respect to the same or in other words to prevent “home court advantage” as this ADR system believes in Audi Alterum Partum.

These features which allow the parties to choose arbitrators knowledgeable in the field of dispute attract most cases in international Commercial Arbitration.

DEFINING CHARACTERISTICS OF ARBITRATION AGREEMENT

  1. Consent

Consent is a major feature under arbitration as only after the consent of both the parties the arbitrator is granted the power to decide the dispute and also it limits its power to the extent that he can only give decision within the scope of agreement between parties. “Submission agreement” is an agreement between parties where they put a clause for future disputes and decide to go for arbitration in such case. If in case, no such future clause has been mentioned parties can still go for arbitration after the dispute has arisen by entering into an agreement.

  • Non-Governmental Decision-Maker selected by or for the parties

Another main characteristic is the freedom to parties to choose their own arbitrators or if in case of absence of any agreement with respect to the same, the parties can choose an arbitral institution which then on their behalf would choose arbitrators for the dispute resolution.

In case, the parties decide to present the dispute in a national court, then, the arbitration doesn’t extend to forum selection agreements.

Arbitrators when compared with judges tells one that they are private citizens and do not come under the purview of any governmental authority. Unlike judges who decide a case keeping in mind public policy, the arbitrators only decide the case for the betterment of the parties and they are very thoughtful and considerate in their interactions. Arbitrators are specialized in certain technical skills such as that of architecture or engineering etc.

  • Final and Binding award

The last but not the least feature of arbitration is the final and binding award which means that the decisions given by arbitrators are in a final manner and are only allowed to be challenged in National courts on limited grounds.

Arbitration differs from negotiation, where the parties are free to accept or reject the decision and arbitration is not just a mere recommendation. Only when there is a defect in the procedure of conducting the arbitration can the parties appeal in some jurisdictions against the judgment.

After the judgment by the arbitrator has been given, the winning party if in case the losing party refuses to comply with the judgment can have the award recognized and enforced by the court where the losing party has its assets.

An award granted by the arbitrator in a case has same effect as any judgment would have in a trial jurisdiction.

FORUM SELECTION CLAUSES AND NATIONAL COURTS

In international disputes parties’ contracts often contain “choice of court” or “forum selection” covenants which state mainly that such and such dispute would be resolved in such and such specified court.

Also, an arbitration agreement is not a forum selection clause and vice versa as the resolution of dispute under the forum selection clause takes place by litigation in a national court. In arbitration procedure, the case is decided by a private arbitrator chosen by or for the parties.


GEOGRAPHICAL INDICATIONS OF GOODS (REGISTRATION AND PROTECTION) ACT, 1999

By- Diksha Gupta

India’s first GI was registered in 2004 & by January 11, 2018, The GI Registry, India has granted registration to around 610 GI’s which includes GI’s of handicrafts, agricultural products, for manufactured products, foodstuff and textile products.

Products that have some qualities or reputation because of their own specific geographical origin are marked with a geographical indication. It is mostly granted to natural, manufactured, handicrafts, agricultural products that originates from a specific geographical area.

Article 22 of the TRIPS Agreements & Section 2(1)(g) of the Geographical Indications of Goods (Registration and Protection) Act, 1999 talks about Geographical Indication. Here, GI is defined as an indication to identify whether the goods for which the quality, reputation or any other specific characteristic is of great value are originating from a member territory or from a region or locality in that territory. The value attributed to the goods are because of their geographical origin.

India became a member of TRIPS Agreement and in 1999, Geographical Indications of Goods (Registration and Protection) Act was enacted with a threefold objective:

  1. By enacting a specific law to govern the geographical indication of goods in the country would lead to protect the interest of producers of such goods efficiently,
  2. To protect the consumers from any kind of deception by eliminating the unauthorized persons from exploiting geographical indications,
  3. For the promotion of Indian geographically indicated goods in the export market.

Geographical indications are registered under sec 8 for any or all the goods that are comprised within a particular class. A third party cannot use a registered geographical indication by a way of designating or presenting that such goods originated in that geographical territory.

Sec 9 provides a list of GIs that cannot get registered and sec 10 talks about the registration of those GI’s which have same spelling or pronunciation but have different meaning and are an indicator of origin of different nation, specifically called as the homonymous GI’s.

A GI belongs to a particular community unlike the other IP rights that belongs to a particular individual and because of this difference the GI registration application is not filed by an individual but by the association of persons, producers, organisations or any other authority who has a significant interest in the concerned goods.

A registered GI is protected for a period of 10 years and they can be renewed timely by paying the renewal fees, in accordance with the provisions of Sec 18.

A trademark and GI are different from each other and the major differences include:

Collective mark is a mark that marks the difference of one group of products from other products that do not belong from the region it is offering protection.

Cases:

The Geographical Indications (GI) Registry, Chennai, rejected the plea by the applicant for removal of G.I tag against “Tirupati Laddu”.

For example, there are two geographical indications concerning Darjeeling Tea. One uses the word spelled “DARJEELING TEA VIDE” & the other uses a symbol for the word Darjeeling tea.

It was held by the Tea Board that any third party can be prohibited by the Registered Proprietor of Darjeeling Tea from using the term “Darjeeling” for the tea produced or grown in their gardens. The tea produced & grown is not produced in accordance with the standards made for the registered Geographical Indication.

ROLE AND FUNCTION OF AN EFFECTIVE ADVISORY BOARD UNDER CODE ON WAGES, 2019 WITH RESPECT TO MINIMUM WAGES ACT, 1948

By- Anjanee Goel[1]

In the search for better corporate governance, and appropriately composed and assembled efficient advisory board can provide non-obligatory but knowledgeable assistance and serve as a remarkable friend. Hence, provisions relating to the Central level and State level Advisory boards under the Code on wages 2019 and Minimum Wages Act 1948 have been discussed below.

According to the Code on Wages, 2019, the floor pay payable to employees will be chosen in meeting with the Central Advisory Board and certain State Governments as the Central Government regards vital.

Section 42 of Chapter V of the Code on Wages, 2019 states that the Central and State governments will establish Advisory Boards which will comprise of following people:

(a) Employers,

(b) Employees (in equivalent number as employers),

(c) Independent people, and

(d) 5 delegates of such State Governments as might be designated by the Central Government.

State Advisory Boards will comprise of employers, independent representatives, and employees.

Further, 33% (one-third) of the total individuals on both the Central and State Boards will be females under the wages code, 2019. This step is taken for the upliftment of women.

The Boards under the Code will prompt particular governments on different issues including:

(a) Fixation or amendment of least wages and other associated matters;

(b) Providing females with employment opportunities;

(c) The Central Government may, by notification, indicate the degree to which ladies might be employed in such foundations or jobs; and

(d) Any other issue identifying with this Code.

With respect to Section 7 of the Minimum Wages Act, 1948, the Appropriate government will designate an advisory board for the rationale of coordinating the work of committees and sub-committees nominated underneath section 5 and advising the appropriate Government in general, in the matter of putting in place and updating minimum wage rates.

Section 8 of Minimum Wages Act, 1948 states that the Central Government will choose a Central Advisory Board for the reason for prompting the Central and State Governments in the issues of the fixation and correction of minimum rates of wages and different issues beneath this Act and coordinating the work of the Advisory Boards.

The Central Government representing managers and workers in the programmed employments will nominate the persons of the Central Advisory Board who will be equivalent in number.

The Central Government will appoint one of the independent persons out of the sum total independent individuals not exceeding one-third (33.3%) of its total number of members as the chairman of the board.

Thus, through these provisions under the Minimum Wages Act, 1948 and The Code on Wages, 2019, relating to the establishment of Advisory boards and their functions, the overall betterment of Corporate Governance in any Organization is properly ensured and amended from time to time to maintain pace with the dynamic society and technological advancement.


[1] 5th Year, BBA LLB (H.) in Corporate Laws, UPES, Dehradun.

IDENTICAL OR SIMILAR MARKS UNDER THE TRADEMARKS ACT, 1999

By- Anjanee Goel

Section 11 of the Trademarks Act, 1999 talks about identical or similar marks. It states that if a new trademark that has come to the registrar for registration is similar to an already registered trademark then in that case that new trademark cannot be registered. A trademark is still considered to be identical or similar if it has minimal not so significant differences that can’t be distinguished.

There are certain bullet points that are taken into consideration for comparing two marks for similarity as it is not so easy to come up with a catchy and unique trademark name:

  1. A normal person’s ability to distinguish between two products, i.e. imperfect recollection;
  2. The issue as to whether there is any likelihood of confusion in telling the marks apart with respect to their phonetic, visual and structural identity; and
  3. The very basic essential in doing the comparison between two marks is that the products are to be compared as a whole and not broken down and then compared.

In the case of Larsen & Toubro Ltd. v. Lachmi Narain Trades & others[1], It was held that “field of activity” being different is no longer applicable as the main aspect in comparison of two trademarks is the very likelihood of confusion in telling them apart. In this case, the mark used by the plaintiff was “L&T” and the defendants were using names such as “ELENTE” and “LNT”. The plaintiff brought up a case for passing off and filed for an interim injunction but the defendants argued that “LNT” was nothing more than an abbreviation of their business, i.e. Lachmi Narain Trades, but the appellate court reversed the lower court’s judgment in favour of the plaintiff ordering an interim injunction against defendants for not using such names as it was bound to interfere in the plaintiff’s business and gain goodwill in their pretense.

Section 12 of the Trademarks Act, 1999 is an exception to section 11 as under this section one can apply for trademark even if a similar or identical trademark already exists. The decision power resides with the registrar who decides whether there has been an honest or concurrent use of the trademark by the defendant.

Following the foreign judgments like Dent v. Turpin[2] and Southorn v. Reynolds[3], the very first case that laid law with respect to this exception was Kores (India) Ltd. v. M/S Eshwarsa and sons[4] This case gave certain factors to be considered:

  1. How much was the extension of utilization of area, quantity and time duration?
  2. Whether the trademark was honestly used concurrently?
  3. What is the degree of confusion between marks which can cause inconvenience to the public?
  4. What are the available evidences to prove the inconvenience and confusion?
  5. If supposedly, the honest and concurrent use of the trademark is allowed to the party then what would be the relative inconvenience to the other party? Or what if such exception was not allowed, then, how would it affect both the parties relatively?

A landmark case where the defense of honest and concurrent use was permitted was the case of Goenka Institute of Education and Research v. Anjani Kumar Goenka and others[5] It was held that even if both the parties had started using the same name “Goenka”, still there no very less probability of people getting confused since one party was in New Delhi and the other was in Rajasthan.


[1] Larsen & Toubro Ltd. v. Lachmi Narain Trades & others, 2008 (36) PTC 223 (Del) (DB).

[2] Dent v. Turpin, (1861) 2 John & H 139.

[3] Southorn v. Reynolds, (1865) 12 LT (NS) 75.

[4] Kores (India) Ltd. v. M/S Eshwarsa and sons, 1985 (1) BomCR 423.

[5] Goenka Institute of Education and Research v. Anjani Kumar Goenka and others, 2009 (39) PTC 720 (Del.).