Comsumer Prot Act

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The Consumer Protection Act, 1986

Introduction

The earlier principle of Caveat Emptor or let the buyer beware

which was prevalent has given way to the principle of consumer isking. The origins of this principle lie in the fact that in todays mass

production economy, where there is little contact between the producerand consumer, often sellers make exaggerated claims throughadvertisements, which they do not intend to fulfill. This leaves theconsumer in a difficult position with very few opportunities forredressal. The need to recognize and enforce the rights of consumers isbeing understood and several laws have been made for this purpose. InIndia, we have the Indian Contract Act, the Sales of Goods Act, theDangerous Drugs Act, the agricultural Produce (Grading and Marketing)

Act, Prevention of Food Adulteration Act, the Standards of Weights andMeasures Act, the Trade and Merchandise Marks Act, etc, which tosome extent protect consumer interests. However, these laws requirethe consumer to initiate action by way of a civil suit, which involveslengthy legal process proving to be too expensive and time consumingfor lay consumers. Therefore, the need for a simpler and quickerredressal to consumer grievances was felt and accordingly, it led to thelegislation of the Consumer Protection Act, 1986.

2. Extend and Coverage of the Act

The salient features of the act are summed up as under:-

The act applies to all goods and services unless specificallyexempted by the Central Government.

It covers all the sectors whether private, public or cooperatives.

The provisions of the Act are compensatory in nature.

3. Object of the Consumer Protection Act, 1986

The main objectives of the Act are:

i. To provide better protection to consumers. Unlike existing laws,which are punitive or preventive in nature?


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ii. The Act is intended to provide simple, speedy and inexpensiveredressal to consumers grievances, and award compensationwherever appropriate to the consumer.

iii. The Act has been amended in 1993 and in 1999 both to extend its

coverage and scope and to enhance the powers of redressalmachinery.

iv. To promote voluntary consumer movements and to safeguard theinterests of consumers.

4. Rights of Consumers

The basic rights of consumers as per the Consumer Protection Act

are;

i. The right to be protected against marketing of goods and serviceswhich are hazardous to life and property.

ii. The right to be informed about the quality, quantity, potency,purity, standard and price of goods or services at competitiveprices.

iii. The right to be heard and be assured that consumers interest will

receive due consideration at appropriate forums.

iv. The right to seek redressal against unfair trade practices orrestrictive trade practices or unscrupulous exploitations ofconsumers, and

v. The right to be assured wherever possible, access to variety ofgoods and services at competitive prices.

vi. The right to consumer education.

The act envisages establishment of Consumer ProtectionCouncils at the Central and State levels, whose main objects willb to promote and protect the rights of the consumers. The CPAextends to the whole of India expect the State of Jammu and


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Kashmir and applies to all the goods and services unless andotherwise notified by the Central Government.

5. Definitions of Important Terms

Before studying the provisions of the CPA, it is necessary tounderstand the terms used in the Act. Let us understand some of

the more important definitions.

a. Complaint Means

A consumer; or

Any voluntary consumer association registered under theCompanies Act, 1956 or under any other law for the time

being in force; or

The central government or state government, who or whichmakes a complaint against the suppliers of goods orservices.

b. Goods mean goods as defined in the Sale of Goods Act, 1930.Under that act, goods means every kind of movable propertyother than actionable claims and money and includes stocks andshares, growing crops, grass and things attached to or forming

part of the land which are agreed to be severed before sale orunder the contract of sale.

c. Service is defined to mean that a service of any descriptionwhich is made available to potential users and includes theprovisions of facilities in connection with banking, financing,insurance, transport, processing, supply of electrical or otherenergy, board or lodging or both, housing construction,entertainment, amusement or purveying of news or otherinformation but does not include the rendering of any service

free of charge or under a contract of personal service.

d. Consumer dispute means dispute where the person againstwhom a complaint has been made, denies or disputes theallegation contained in the complaint.


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e. Restrictive Trade Practice means any trade practices whichrequires a consumer to buy, hire, or avail of any goods or as thecase may be, services as a condition precedent for buying, hiringor availing of any other goods or services.

f. Unfair Trade Practice means unfair trade practice as definedunder the Monopolies and Restrictive Trade Practices Act. The

MRTP Act has defined certain practices to be Unfair TradePractices. The detailed definition is given in the ConsumerProtection Act, 1986 as amended by the Consumer Protection(Amendment) Act. 1993. It means a trade practice which, for thepurpose of promoting sale, use or supply of any goods or for theprovision of any service, adopts any unfair method or unfair ordeceptive practice including any of the following practicesnamely:-

i. False or misleading representation,

ii. Bargain price

iii. Offering of gifts, prize, contest etc.

iv. Non compliance of product safety standard.

v. Hoarding or destruction of goods.

g. Defect means any fault, imperfection or shortcoming in thequality, quantity, potency, purity or standard which is required tobe maintained by or under any law for the time being in force orunder any contract, express or implied, or as is claimed by thetrade in any manner whatsoever in relation to any goods.

h. Deficiency means any fault, imperfection or shortcoming orinadequacy in the quality, nature and manner of performancewhich is required to be maintained by or under any law for the

time being in force or has been undertaken to be performed by aperson in pursuance of a contract or otherwise in relation to anyservice.

6. Who is a Consumer?


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All of us are consumers of goods and services. For the purpose ofthe Consumer Protection act, the word Consumer has been definedseparately for goods and services. For the purpose of goods, aconsumer means a person belonging to the following categories:

i. One who buys or agrees to buy any good for a considerationwhich has been paid or promised or partly paid and partly

promised or under any system of deferred payment;

ii. It includes any user of such goods other than the person whoactually buys goods and such use is made with the approval ofthe purchaser.

A person not a consumer if he purchases goods for commercialor resale purposes. However, the word commercial does not

include use by a consumer of goods bought and used by himexclusively for the purpose of earning his livelihood by means of selfemployment.

For the purpose of services, a consumer means a personbelonging to the following categories:

One who hires or avails of any service or services for aconsideration which has been paid or promised or partly paid andpartly promised or under any system of deferred payment. It

includes any beneficiary of such service other than the one whoactually hires or avails of the service for a consideration and suchservices are availed with the approval of such person.

7. Who can file a Complaint?

The following can file a complaint under the Act:-

A consumer

Any voluntary consumer organization registered under theSocieties Registration Act, 1860 or under the CompaniesAct, 1956 or under any other laws for the time being inforce.

The Central Government


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The State Government or Union Territory Administrations.

One or more consumers on behalf of numerous consumerswho are having the same interest.

8. Structure of Consumer Redressal Authority

To provide simple, speedy and inexpensive redressal of consumergrievances. the Act envisages a three- tier quasi judicial machinery at theNational, State and District levels.

1.National Consumer Disputes Redressal Commission

known as "National Commission".2.Consumer Disputes Redressal Commissions at state level

known as "Slate Commission".3.Consumer Disputes Redressal Forums at District level

known as "District Forum".

9.What Constitutes a Complaint?

Under the Act, a complaint means any allegation in writing made bya complainant in regard to one or more of the following:-

Any unfair trade practice as defined in the Act or restrictivetrade practices like tie-up sales adopted by any trader.

One or more defects in goods. Goods hazardous to life and

safety, when used, are being offered for sale to public incontravention of provisions of any law for the time being in force.

Deficiencies in services. A trader charging in excess of price

(i) Fixed by or under any law for the time being in force; or

(ii) Displayed on goods; or

(iii) Displayed on any packet containing such goods

10. Consumer Protection Councils

The interests of consumers are ensured through various authoritiesset up under the Consumer Protection Act. The CPA provides for thesetting up of the Central Consumer Protection Council, the Stateconsumer Protection Council and the District Forum.


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i. Central Consumer Protection Council:

The Central Government has to set up the Central ConsumerProtection ' Council which consists of the following members:-

(a) The Minister in charge of Consumer Affairs in the CentralGovernment who is its Chairman, and

(b) Other official non-official members representing varied interests.

The Central Council consists of 150 members and its term is 3years.The Council meets as and when necessary but at least one meetingis held in a year.

ii. State Consumer Protections Council

The Stale Council consists of:-

(a) The Minister in charge of Consumer Affairs in the State Government

who Chairman, and

(b) Other official and non-official members representing varied

interests. The State Council meets as and when necessary, but notless than two meetings must be held every year.

9. Redressal Machinery under the Act

The Consumer Protection Act provides for a 3 tier approach inresolving consumer disputes. The District Forum has jurisdiction toentertain complaints where the value of goods / services complainedagainst and the compensation claimed is less than Rs. 5 lakhs, the StateCommission for claims exceeding Rs. 5 lakhs but not exceeding Rs. 20lakhs and the National Commission for claims exceeding Rs. 20 lakhs.

I. District Forum

Under the Consumer Protection Act, Government has to set up a

district Forum in each district of the Slate. The Government may establishmore than one District Forum in a district if it deems fit. Each DistrictForum consists of :-

(a) A person who is, or who has been, or is qualified to be, a

District judge who shall be its President


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(b) Two other members who shall be persons of ability, integrity

and standing and have adequate knowledge or experience orhave shown capacity in dealing with problems relating toeconomics, law. commerce, accountancy, industry, publicaffairs or administration and one of whom shall be a woman.

Appointments to the State Commission shall be made by the StateGovernment on the recommendation of a Selection Committee consistingof the President of the Stale Committee, the Secretary of LawDepartment of the State and the Secretary in charge of Consumer Affairs.Every member of the District Forum holds office for 5 years or up to theage of 65 years, whichever is earlier and is not eligible for re-appointment. A member may resign by giving notice in writing to theState Government whereupon the vacancy will be filled up by the StateGovernment.

The District Forum can entertain complaints where the value ofgoods or services and the compensation, if any, claimed is less thanrupees five lakhs. However, in addition to jurisdiction over consumergoods services valued up to Rs. 5 lakhs, the District Forum also may passorders against traders indulging in unfair trade practices, sale of defectivegoods or render deficient services provided the turnover of goods orvalue of services does not exceed rupees five lakhs.

A complaint shall be instituted in the District Forum within the local

limits of whose

(a) The opposite party or the defendant actually and voluntarilyresides or carries on business or has a branch office orpersonally works for gain at the time of institution of thecomplaint; or

b) Any one of the opposite parties (where there are more thanone) actually and voluntarily resides or carries on business or

has a branch office or personally works for gain, at the time ofinstitution of the complaint provided that the other oppositeparty/parties acquiescence in such institution or the permissionof the Forum is obtained in respect of such opposite parties; or

(c) The cause of action arises, wholly or in part.

II. State Commission


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The Act provides for the establishment of the State ConsumerDisputes Redressal Commission by the State Government in the State bynotification. Each State Commission shall consist of:-

(a) A person who is or has been a judge of a High Court appointedby State Government (in consultation with the Chief Justice ofthe High Court) who shall be its President;

(b) Two other members who shall be persons of ability, integrity,

and standing and have adequate knowledge or experience of,or have shown capacity in dealing with problems relating toeconomics, law, commerce, accountancy, industry, publicaffairs or administration and one of whom must be a woman.

(c) Every appointment made under this Act shall be made by theState Government on the recommendation of a SelectionCommittee consisting of the President of the State Commission,Secretary - Law Department of the State and Secretary incharge of Consumer Affairs in the State.

Every member of the State Commission holds office for 5 years orunto the age of 65 years, whichever is earlier and is not eligible for re-appointment. A member may resign by giving notice in writing to theState Government whereupon the vacancy will be filled up by the State

Government.

The State Commission can entertain complaints where the value ofgoods or services and the compensation if any claimed exceed Rs. 5 lakhsbut does not exceed Rs. 20 lakhs;

The State Commission also has the jurisdiction to entertain appealagainst the orders of any District Forum within the State. The StateCommission also has the power to call for the records and passappropriate orders in any consumer dispute which is pending before or

has been decided by any District Forum within the State if it appears thatsuch District Forum has exercised any power not vested in it by law orhas failed to exercise a power rightfully vested in it by law or has actedillegally or with material irregularity.

III. National Commission


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The Central Government provides for the establishment of theNational Consumer Disputes Redressal Commission. The NationalCommission shall consist of :-

(a) A person who is or has been a judge of the Supreme Court,to be appoint by the Central Government (in consultationwith the Chief Justice of India ) who will be its President;

(b) Four other members who shall be persons of ability, integrity

and standing and have adequate knowledge or experience of,or have shown capacity in dealing with, problems relating toeconomics, law, commerce, accountancy, industry, publicaffairs or administration and one of whom shall be a womanAppointments shall be by the Central Government on the

recommendation of a Selection Committee consisting of aJudge of the Supreme Court to be nominated by the Chief

Justice of India, the Secretary in the Department of Legal Affairsand the Secretary in charge of Consumer Affairs in the Government ofIndia.

Every member of the National Commission shall hold office for aterm of five years or up to seventy years of age, whichever is earlier andshall not be eligible for reappointment.

The National Commission shall have jurisdiction:

(a) To entertain complaints where the value of the goods or services

and the compensation, if any, claimed exceeds rupees twentylakhs:

(b) To entertain appeals against the orders of any State Commission;

and

(c) To call for the records and pass appropriate orders in any

consumer dispute which is pending before, or has been decidedby any State Commission where it appears to the NationalCommission that such Commission has exercised a jurisdictionnot vested in it by law, or has failed to exercise a jurisdiction sovested, or has acted in the exercise of its jurisdiction illegally orwith material irregularity.


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Complaints may be filed with the District Forum by:-

1. A consumer to whom such goods are sold or delivered or agreed

to be sold or delivered or such service provided or agreed to beprovided

2. Any recognized consumer association, whether the consumer to

whom goods sold or delivered or agreed to be sold or delivered orservice provided or agreed to be provided, is a member of suchassociation or not.

3. One or more consumers, where there are numerous consumers

having the same interest, with the permission of the DistrictForum, on behalf of or for the benefit of, all consumers sointerested

4. The Central or the State Government. On receipt of a complaint,

a copy of the complaint is to be referred to the opposite party,directing him to give his version of the case within 30 days.

This period may be extended by another 15 days. If the oppositeparty admits the allegations contained in the complaint, the complaintwill be decided on the basis of materials on the record. Where theopposite party denies or disputes the allegations or omits or fails to takeany action to represent his case within the time provided, the dispute

will be settled in the following manner:-

In case of disputerelating to any goods: Where the complaint allegesa defect in the goods which cannot be determined without proper analysisor test of the goods, a sample of the goods shall be obtained from thecomplainant, sealed and authenticated in the manner prescribed forreferring to the appropriate laboratory' for the purpose of any analysis ortest whichever may be necessary, so, as to find out whether such goodssuffer from any other detects. The appropriate laboratory' would berequired to report its finding to the referring authority, i.e. the District

Forum or the State Commission within a period forty-five days from thereceipt of the reference or within such extended period as may begranted by these agencies.

10. How to File a Complaint

Procedures for filing complaints and seeking redressal are simple.There is no fee for filing a complaint before the District Forum, the State


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Commission or the National Commission.(A stamp paper is also notrequired) There should be 3 to 5 copies of the complaint on plain paper.

The complainant or his authorized agent can present the

complaint in person.

The complaint can be sent by post to the appropriate Forum /Commission.

A complaint should contain the following information

(a) The name, description and the address of the complainant.

(b) The name, description and address of the opposite party or

parties, as the case may be, as far as they can beascertained;

(c) The facts relating to the complaint and when and where it

arose;

(d) Documents, if any, in support of the allegations containedin the complaint.

(e) The relief which the complainant is seeking

The complaint should be signed by the complainant or hisAuthorized agent.The complaint is to be filed within two years from the date on whichcause of action has arisen.11. Relief Available to the Consumers

Depending in the nature of relief sought by the consumer facts, theRedressal Forums may give orders for one or more of the following

reliefs:-(a) Removal of defects from the goods,

(b) Replacement he goods;

(c) Refund of the price paid;

(d) Award of compensate 'on for the loss or injury suffered;

(e) Removal of defects or deficiencies in the services;

(f) Discontinuance of unfair trade practices or restrictive trade

practices.

(g) Withdrawal of the hazardous goods from being offered to sale;or

(h) Award of adequate costs to parties.

12. Procedure for Filing the Appeal:


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Appeal against the decision of a District Forum can file before theState Commission within a period of thirty against the decision of a StateCommission can be filed before the National Commission within thirtydays. Appeal against orders of the National Commission can be filedbefore the Supreme Court within a period of thirty days.

i. There is no fee for filing appeal before the State:

Procedure for filing the appeal is the same as that of a complaint,except that the application should be accompanied by the orders of theDistrict/State Commission as the case may and grounds for filing theappeal should be specified in the peal against the decision of DistrictForum and State Commission the National Commission.

ii. Speedy Disposal

The thrust of the Act is to provide simple, speedy and inexpensiveredressal to consumers grievances. To ensure a speedy disposal ofconsumers grievances, the following provisions have been incorporated inthe Act and the rules framed there under:-

It is obligatory on the complainant or appellant or their authorized

agents and the opposite parties to appear before theForum/Commission on the date of hearing or any other date towhich hearing could be adjourned.

The National Commission, State Commission and District Forums

are required to decide complaints, as far as possible, within aperiod of three months from the date of notice received by theopposite party where the complaint does not require analysis ortesting of the commodities and within five months if it requiresanalysis or testing of commodities.

The National Commission and State Commissions are required to

decide the appeal as far as possible, within 90 days from the firstdate of hearing.

13. Penalties :-

Where a trader or a person against whom a complaint is made failsor omits to comply with any order made by District Forum, the StateCommission or the National Commission, as the case may be, such traderor person shall be punishable with imprisonment for a period which shall


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not be less than one month but which may extend upto three years orwith a fine which shall not be less two thousand rupees but which mayextend upto Ten thousand rupees or with both.

Cyber Law

Introduction

Cyber law is a new phenomenon having emerged much after theonset of Internet. Internet grew in a completely unplanned andunregulated manner. Even the inventors of Internet could not have reallyanticipated the scope and far reaching consequences of cyberspace. Thegrowth rate of cyberspace has been enormous. Internet is growingrapidly and with the population of Internet doubling roughly every 100days, Cyberspace is becoming the newly preferred environment of the

world.

With the spontaneous and almost phenomenal growth ofcyberspace, new and ticklish issues relating to various legal aspects ofcyberspace began cropping up. In response to the absolutely complexand newly emerging legal issues relating to cyberspace, CYBERLAW orthe law of Internet came into being. The growth of Cyberspace hasresulted in the development of a new and highly specialized branch of lawcalled CYBERLAWS- LAWS OF THE INTERNET AND THE WORLD WIDEWEB.

2.Definition

There is no single exhaustive definition of the term "Cyber law".However, simply put, Cyber law is a term which refers to all the legal andregulatory aspects of Internet and the World Wide Web. Anythingconcerned with or related to, or emanating from any legal aspects orissues concerning any activity of citizens and others in Cyberspace comeswithin the ambit of Cyber law .

3.Need for Cyber laws In India

India became independent on 15th August, 1947. In the49th year of our independence, Internet was commerciallyintroduced in our country. The beginnings of Internet were extremelysmall and the growth of subscribers was painfully slow. However asInternet has grown in our country, the need has been felt to enactthe relevant Cyber laws which are necessary to regulate the Internet


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in India. This need for cyber laws was propelled by numerousfactors.

Firstly, India has an extremely detailed and well defined legalsystem in place. Numerous laws have been enacted andimplemented and the foremost amongst them is the constitution of

India .We has inter alia, the penal code, the Indian evidence act1872, the bankers book evidence act, 1981 and the reserve bank of

India act, 1934, the companies act, and so on. However the arrivalof internet signaled the beginning of the rise of new and complexlegal issues. It may be pertinent to mention that all the existing lawsin place in India were enacted way back keeping in mind the relevantpolitical, social, economic, and cultural scenario of that relevant time.Nobody then could really visualize about the internet. Despite thebrilliant acumen of our master draftsmen of constitution therequirements of cyberspace laws could hardly ever be anticipated. As

such, the coming of the internet led to the emergence of numerousticklish legal issues and problems which necessitated the enactmentof cyber laws.

Secondly, the existing laws of India, even with the mostbenevolent and liberal interpretation, could not be interpreted in thelight of the emerging cyberspace, to include all aspects relating todifferent activities in cyberspace. In fact practical experience andwisdom of judgment found that it shall not be without major perilsand pitfalls, if the existing laws were to be interpreted in the scenarioof emerging cyberspace, without enacting new cyber laws. Hence the

need for enactment of relevant cyberlaws.Thirdly, none of the existing laws gave any legal validity or

sanction to the activities in cyberspace. For example, the net is usedby a large majority of users for e-mail. Yet till today, e-mail is not

legal in our country. There is no law in the country, which giveslegal validity and sanction to e-mail. Courts and judiciary in ourcountry have been reluctant to grant judicial recognition to thelegality of e-mail in the absence of any specific law having beenenacted by the parliament. As such the need has arisen for cyberlaw.

Fourthly, Internet requires an enabling and supportive legal

infrastructure in tune with the times. This legal infrastructure canonly be given by an enactment of the relevant. Cyberlaws as thetraditional laws have failed to grant the same. E-commerce, thebiggest feature of internet, can only be possible if necessary legalsanction validity complements the same to enable its vibrant growth.

All these and other varied considerations created a conduciveatmosphere for the need to enact relevant cyberlaws in India. The


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government of India responded by coming up with a draft of the firstcyber law of India The information technology bill, 1999.

INDIA PASSES ITS FIRST CYBERLAW

The internet is not lawless. Law is always there for the

internet; but new questions arise about how that law will be appliedand it is not always with same predictability or certainty as is foundwith more traditional topics. Internet networking is based oninformation being broken down into smaller pieces, or packets, thatare transmitted to its destination by routers and servers, dependenton a type of address system known as the TCP/IP protocol(Transmission Control Protocol/Internet Protocol). To work asnetwork, each user linking to it must have a direct identifier (an IP

address) recognizable by the network.The internet is a complex and multinational environment where

traditional concepts of regulation may not be easily applicable orenforceable. Special problems are created because of the unfamiliarfeatures such as disembodying in time and space of the actor andaction, The amount of traffic, and the universality of the traffic.

INFORMATION TECHNOLOGY ACT 2000

The parliament of India as passed its first cyber law, the

information technology act, 2000 which not only provides the legalinfrastructure for e-commerce in India but also at the same time,gives draconian powers to the police to enter and search, without anywarrant, any public place for the purpose of nabbing cyber criminalsand preventing cyber crime.

DEFINING CYBER CRIME

Defining cyber crimes, as acts that arepunishable by the Information Technology Act would be unsuitable

as the Indian Penal Code also covers many cyber crimes, such as e-mail spoofing and cyber defamation, sending threatening e-mails etc.A simple definition of cyber crime would be unlawful acts whereinthe computer is either a tool or target or both.

The word cyber and its relative dot.com are probably the mostcommonly used terminologies of the modern era. In the information


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age, the rapid development of computers, telecommunications andother technologies has led to the evolution of new forms oftransnational crimes known as cyber crimes. Cyber crimes havevirtually no boundaries and may affect every country in the world.They may be defined as any crime with the help of a computer and

a telecommunication technology. With the purpose of influencingthe functioning of a computer or the computer systems.

NATURE OF CYBER CRIMEThe extent of loss involved worldwide of cyber crimes is

tremendous as it is estimated that about 500 million people who usethe internet can be affected by the emergence of cyber crimes. Cybercrimes are a very serious threat for the times to come and pose oneof the most difficult challenges before the law enforcement

machinery. Most cyber crimes do not involve violence but rathergreed, pride, or play on some characteristic weakness of the victims.It is difficult to identify the culprit, as the Net can be a vicious web ofdeceit and can be accessed from any part of the globe. For thesereasons, cyber crimes are considered as white-collar crimes. Tounderstand cyber crime as a significantly new phenomenon, withpotentially and profoundly serious consequences, it is necessary torecognize it as a constituent aspect of the wider political, social andeconomic reconstruction currently affecting countries worldwide. Thisnew technology not only provides opportunities for the profitable

development of an international information market but has alsoraised the specter of new criminal activities to exploit them. The verytechnology that enables multinationals to do business more effectivelyand challenge the individual controls and regulations of nation states,also offers the prospect of globally organized criminal networks.Moreover the free flow of uncensored information on electronicnetworks and websites is as attractive to insurgents and extremistgroups as it is dissidents proclaiming the human rights. Just as crimeshave changed with the growth of information technology so have thecategories of criminals who engage in such crimes. There are three

basic categories of criminals who engage in such crimes, ranging fromhackers, information merchants and mercenaries, to terrorists,extremists and deviants.

TYPES OF CYBER CRIMES

A. Hacking:


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It is the most common type of cyber crime beingcommitted across the world. Hacking has been defined in section 66of the information technology act, 2000 as follows:

Whoever with the intent to cause or knowing that he is likelyto cause wrongful loss or damage to the public or any person

destroys or deletes or alters any information residing in a computerresource or diminishes its value or utility or affects it injuriously by

any means commits hacking.A hacker is a person who breaks in or trespasses a computer

system. Hackers are of different types ranging from code hackers tocrackers to cyber punks to freaks.

Some hackers just enjoy cracking systems and gaining accessto them as in ordinary pastime; they do not desire to commit anyfurther crime. Whether this in itself would constitute a crime is a

matter of debate. At most, such a crime could be equated withcriminal trespass.

Punishment for hacking under the above mentioned section isimprisonment for three years or fine which may extent up to twolakh rupees or both.

B. Cracking:The term cracking means, Illegal accesses. Now, access

comprises entering of the whole or any part of a computer system(hardware components, stored data of the system installed,

directories, traffic and content related data). However, it does notinclude the mere sending of an e-mail message or file to thatsystem. Access includes the entering of another computer system,where it is connected via public telecommunication networks or to acomputer system on the same network, such as a LAN (Local AreaNetwork) or intranet within an organization. The method ofcommunication (e.g. from a distance, including via wireless links orat a close range) does not matter. So if a virus is sent through an e-mail, it is not an illegal access and hence cannot be termed as

cracking.

C. Security Related Crimes:With the growth of the internet, network security has

become a major concern. Private confidential information hasbecome available to the public. Confidential information can reside intwo states on the network. It can reside on the physical storedmedia, such as hard drive or memory or it can reside in the transit


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across the physical network wire in the form of packets. These twoinformation states provide opportunities for attacks from users onthe internal network, as well as users of the internet.

D. Network Packet Snifters:

Network computers communicate serially where largeinformation pieces are broken in to smaller ones. The information

stream would be broken in to smaller pieces even if networkscommunicate in parallel. These smaller pieces are called networkpackets. Since these network packets are not encrypted they can beprocessed and understood by any application that can pick them offthe network and process them. A network protocol specifies howpackets are identified and labeled which enables a computer todetermine whether a packet is intended for it. The specifications fornetwork protocols such as TCP/IP are widely published. A third party

can easily interpret the network packets and develop a packetsnifter. A packet snifter is a software application that uses a networkadapter card in a promiscuous mode (a mode in which the networkadapter card sends all packets received by the physical network wireto an application for processing) to capture all network packets thatare sent across a local network. A packet snifter can provide its userswith meaningful and often sensitive information such as user accountnames and passwords.

E. Internet Protocol Spoofing:

An IP attacks occurs when an attacker outside the networkpretends to be a trusted computer either by using an IP address thatis within its range or by using an external IP address that you trustand to which you wish to provide access to specified resources onyour network. Normally, an IP spoofing attack is limited to theinjection of data or commands in to an existing stream of datapassed between client and server application or a peer-to-peernetwork connection.

F. Password Attacks:

Password attacks can be implemented using severalmethods like the brute force attacks, Trojan horse programmes. IPspoofing can yield user accounts and passwords. Password attacksusually refer to repeated attempts to identify a user password oraccount. These repeated attempts are called brute force attacks.

At the core of these security breaches, is the distribution ofsensitive information to competitors or others who use it to the


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owners disadvantage. While an outside intruder can use passwordand IP spoofing attacks to copy information, an internal user couldplace sensitive information on an external computer or share a driveon the network with other users.

Man -in -the-middle-attacks This attack requires that the attacker has access to

network packets that come across the networks. The possible use ofsuch attack are theft of information, hijacking an ongoing session togain access to your internal network resources, traffic an

alysis to drive information about ones own network and itsusers, denial of service, corruption of transmitted data, andintroduction of new information into network sessions.

G. Fraud on the internet:

This is a form of white collar crime. Internet fraud is acommon type of crime whose growth has been proportionate to thegrowth of internet itself. The internet provides companies andindividuals with the opportunity of marketing their products on thenet. It is easy for people with fraudulent intention to make theirmessages look real and credible. There are innumerable scams andfrauds, most of them relating to investment schemes and have beendescribed in detail below:

1. Online investment newsletters

Many newsletters on the internet provide the investorswith free advice recommending stocks where they should invest.Sometimes these recommendations are totally bogus and causeloss to the investors.

2. Bulletin boards

This is a forum for sharing investor information andoften fraud is perpetrated in this zone causing loss of millionswho bank on them.

3. E-mail scams

Since junk mail ( e-mail which contains uselessmaterial ) is easy to create, fraudsters often find it easy to


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spread bogus investment schemes or spread false informationabout a company.

4. Credit card fraud

With the electronic commerce rapidly becoming a majorforce in national economies, it offers rich pickings for criminalsprepared to undertake fraudulent activities. In U.S.A. the ten mostfrequent fraud reports involve undelivered and online services;damaged, defective, misrepresented or undelivered merchandise;auction sales; pyramid schemes and multilevel marketing and of themost predominant among them is credit card fraud. Something likehalf a billion dollars is lost by consumers in card fraud alone.

5. Publishing of false digital signature

According to section 73 of the I.T. Act 2000, if a personknows that a digital signature certificate is erroneous in certainparticulars and still goes ahead and publishes it, he is guilty of havingcontravened the Act. He is punishable with imprisonment for a termthat may extend up to two years or with fine of lakh rupees or withboth.

6. Making available digital signature for fraudulent

purpose

This is an offence punishable under section 74 of theabove mentioned act, with imprisonment act, with imprisonment for aterm that may extend up to two years or with fine of two lakh rupeesor with both.

7. Alteration and destruction of digital information

Corruption and destruction of digital information is thesingle largest menace facing the world of computers. This isintroduced by a human agent with the help of various programmeswhich have been described in detail below:

Virus just as a virus, can infect the human immunitysystem. There exist programs which can destroy or hamper computersystems. A computer virus is a programme designed to replicate andspread, generally with the victim being oblivious to its existence.Computer viruses spread by attaching themselves to programmes likeword processor or spreadsheets or they attach themselves to the boot


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sector of a disk. When an infected disk, the virus itself is alsoexecuted.

8. Pornography on the Net

The growth of technology has a flip side to it causing multipleproblems in everyday life. Internet has provided a medium for thefacilitation of crimes like pornography. Cyber porn as it is popularlycalled is widespread. Almost 50% of the web sites exhibitpornographic material on the Internet today. Pornographic materialscan be reproduced more quickly and cheaply on new media like harddisks, floppy discs and CD-ROMs. The new technology is not merelyan extension of the existing forms like text, photographs andimages. Apart from still pictures and images, full motion video clipsand complete movies are also available. Another great disadvantage

with a media like this is it is easy availability and accessibility tochildren who can now log on to pornographic websites from theirown houses in relative anonymity and the social and legal deterrentsassociated with the actual purchasing of an adult magazine from thestand no longer present. Furthermore, there are more seriousoffences which have universal disapproval like child pornographyand it is far easier for offenders to hide and propagate through themedium of the internet.

The Information and Technology Act 2000 makes publishingof information which is obscene in electronic form punishable as

under:Whoever publishes or transmits or causes to be published in

the electronic form, any material which is lascivious or appeals tothe prurient interest or if its effect is such as to tend to corruptpersons who are likely, having regard to all relevant circumstances,to read, see or hear the matter contained or embodied in it, shall bepunished on first conviction with imprisonment of either description.for a term may extend to five years and with a fine which may extendto one lakh rupees and in the event of a second or subsequentconviction, with imprisonment of either description for a term which

may extent to two lakh rupees.

Cryptography, private and national security concerns:

The Internet has provided its users with a new forum toexpress their views and concerns on a worldwide platform. As anecessary corollary to the freedom to communicate and speak is the


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fact that this must be allowed with as little State interference aspossible; in other words, the absence of State intrusion. Thisimmediately raises the controversial issue of the right to privacy. Itcan be considered a logical corollary to the freedom of speech andexpression. At the same time it is common knowledge that liberty

cannot thrive without certain restrictions put on them so that eachindividual in society can be best protected. The practice of encryption

and its study which is known as cryptography provides individualswith means of communication that no third party can understandunless specifically permitted by the communicators themselves. Itwould therefore see that this practice is a legitimate utilization of theright to freedom of speech and expression and the right to have aprivate conversation without intrusion.

Breach of Confidentiality and Privacy

According to section 72 of the Information Technology Act2000.If a person has secured access to any electronic record, book,register, correspondence, information, documents or other materialwithout the consent of the person concerned and discloses the sameto any other person then he shall be punishable with imprisonmentup to 2 years, or with a fine which may extent to one lakh rupees, orwith both.

Encryption and Cryptography

Encryption is like sending a postal mail to other party with alock code on the envelop which is known only to the sender and therecipient. This, therefore, has the effect of ensuring total privacyeven in open net works like the internet. Encryption involves thesecret codes and ciphers to communicate information electronicallyfrom one person to another in such a way that the only person socommunicating, could know how to use the codes and ciphers. Thefield of cryptography on the other hand deals with the study of secretcodes and ciphers and the innovations that occurs in the field. It isalso defined has the art and the science of keeping messages secure.Thus while encryption is the actual process, cryptography involvesthe study of the same and is of wider connotation.

The Right to Privacy and Encryption

It is usually agreed upon that in most democracies they doexist private and public spheres every citizens life and that thesetwo spheres are distance and have to be treated as such. Althoughthe line of distinction is blurred and continues to be the subject of


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much debate, especially with regard to certain subject such aspornography or the use of narcotics, it is generally agreed that aliberal democratic state has no power to interfere with the with theprivate aspects of its citizens lives. There is a commonmisconception that the right to privacy is nearly a weapon to ensure

confidentiality in human affairs. This however does not present thecomplete picture. It must be remember that the right to

confidentiality arises only after information regarding humantransaction or affairs have reached third parties. It may be said thatprivacy involves the right to control ones personal information andthe ability to determine how that information should be used andobtained. This principle has sometimes been referred to as the rightto informational self-determination. This principle becomes all themore relevant with the onset of the internet and e-commerce. Thevolume and the varying nature of the transaction carried out on the

net are such that the right to privacy must extend at least to alimited extent. At the same time, the very same factors, volume andthe nature of the transactions also raise to issue of the securityconcerns as to the political, social and economic health of thecountry. Encryption of the details of our personal transactions wouldcertainly assure as to greater degree of privacy but may alsoencroach upon the domain of national security concerns and the twoends may be set to be in conflict.

Restrictions on Cryptography in India

The use of the cryptography and encryption in India is arelatively new phenomenon. The use of this technology for thepurpose of communication has begun only over the last 15-20 yearsin India. According to recent report in India there are very fewcompanies involved in the development of cryptography. Further,cryptography remains within the domain of the defense sector. It isonly as late as 1995 that India introduced a list of items that

required licensing before export. The list only included encryptionsoftware for telemetry system in specific and did not relate toencryption software in general.

The information and Technology Act 2000 seek to introducesome sort of control over the use of encryption for communication inIndia.

Preventing of Computer Crime

a. By Education Everyone.


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For example, users and systems operators; people who holdpersonal data and the people about whom it is held; peoples whocreate intellectual property and those who buy it, and thecriminals. We must educate peoples to:

1. Understand how technology can be used to help others.

2. Think about what it would be like to be the victim of acomputer hacker or computer pirate.

b. By Practicing Safe Computing

1. Always ask: who has or may have access to my log-inaddress?

2. Remember: People such as computer hackers andpirates who hurt others through computer technology are not

cool. They are breaking the law.

3. The internet is analogous to the high seas. No one ownsthem, yet people of all nationalities use them. It would perhaps beideal if unification of internet laws could be achieved as to minimizethe discrepancies in the application of such laws. This is vitalconsidering the growth of commercial activities on the internet.Changes needs to be made to the existing Information andTechnology Act 2000 in order to combat the numerous problemscaused by the internet.

Intellectual Property Rights

NATURE OF INTELLECTUAL PROPERTY RIGHTS:IPR are largely territorial rights except copyright,

which is global in nature in the sense that it is immediately availableto all the members of the Berne convention. These rights areawarded by the state and are monopoly rights implying that no onecan use these rights without the consent of the right holder. it isimportant to know that these rights have no be renewed from time

to time for keeping them in force except in case of copyright andtrade secrets. IPR have fixed term except trademark andgeographical indications which can have indefinite life term providedthese are renewed after a stipulated time specified in the law bypaying the requisite official fees. Trade secrets also have an infinitelife term but they don't have to be renewed. IPR can be assigned,gifted, sold and licensed like any other physical property. Unlike


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other moveable and immoveable properties, these rights can besimultaneously held in many countries at the same time. IPR can beheld only by the legal entities i.e.; who have the right to sell andpurchase property. in other words an institution, which is notautonomous, may not be in a position to own an intellectual

property. These rights especially, patents, copyrights, industrialdesigns, Ic layout design and trade secrets are associated with

something new or original and therefore what is known in publicdomain cannot be protected through the rights mentioned above.Improvements and modifications made over known things can beprotected. It would however, be possible to utilize geographicalindications for protecting some agriculture and traditional products.

TYPES OF IPRs:

Intellectual property rights are legal rights, which resultfrom intellectual activity in industrial, scientific, literary artisticfields. These rights safeguard creators and other producers ofintellectual goods services by granting them certain time-limitedrights to control their use. Protected IP rights like other property canbe a matter of trade, which can be owned, sold or brought. Theseare intangible and non exhaustive consumption.

1. Patents.2. Trademarks.

3. Copyrights and related rights.4. Geographical indications.5. Industrial designs.6. Trade secrets.7. Layout design for integrated circuits.8. Protection of new pant variety.

1. PATENT A patent is an exclusives right granted for an invention,

which is a product or a process that provides a new way of doing

something, or offers a new technical solution to a problem. Itprovides protection for the invention to the owner of the patent. Theprotection is granted for a limited period, i.e. 20 years. Patentprotection means that the invention cannot be commercially made,used, distributed or sold without the patent owner's consent. Apatent owner has the right to decide who may -or may not-use thepatented invention for the period in which the invention is protected.


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The patent owner may give permission to, or license, other partiesto use the invention on mutually agreed terms. The owner may alsosell the rights to the invention to someone else, who will thenbecome the new owner of the patent. Once a patent expires theprotection ends, and the invention enters the public domain, that is ,

the owner no longer holds exclusive rights to the invention, whichbecomes available to commercial exploitation by others.

All patent owners are obliged, in return for patent protection,to publicly disclose information of their invention in order to enrichthe total body of technical knowledge in the world. Such an ever-increasing body of public knowledge promotes further creativity andinnovation in others. In this way, patents provide not only protectionfor the owner but valuable information and inspiration for futuregenerations of researches and inventors.

PATENT RIGHTS

A patent is an exclusive right granted by a country to theowner of an invention to make, use, manufacture and market hisinvention, provided the invention satisfies certain conditionsstipulated in the law. Exclusive right implies that no one else canmake, use, manufacture or market the invention without theconsent of the patent holder. This right is available for a limitedperiod of time. In spite of the ownership of the rights, the use or

exploitation of the rights by the owner of the patent may not bepossible due to other laws of the country which has awarded thepatent. These laws may relate to health, safety, food, security etc.Further, existing patents in similar area may also come in the way.A patent in law is a property right and hence, can be gifted,inherited, assigned, sold or licensed. As the right is conferred by thestate, it can be revoked by the state under very specialcircumstances even if the patent has been sold or licensed ormanufactured or marketed in the meantime. The patent right isterritorial in nature and inventors/their assignees will have to file

separate patent applications in countries of their interest ,along withnecessary fees, for obtaining patents in those countries . A newchemical process or a drug molecule or an electronic circuit or a newsurgical instruments or a vaccine is a patentable subject matterprovided all the stipulations of the law are satisfied.


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THE INDIAN PATENT ACT:

The first Indian patent laws act were promulgated in 1856.These were modified from time to time. New patent laws were madeafter the independence in the form of Indian patent act 1970.The act

has now been radically amended to become fully complaint withprovision of TRIPS. The most recent amendment was made in 2005

which was preceded by amendments in 2000 and 2003. While theprocess of bringing out the amendments was going on, India becamea member of the Paris convention, patent cooperation Treaty andBudapest Treaty. The salient and important features of the amendedAct are explained here.

DEFINITION OF INVENTION:

A clear definition has now been provided for aninvention, which makes it at par with the definitions followed by mostother countries. Invention means a new product or process involvingan inventive step and capable of industrial application. New inventionmeans any invention or technology which has not been anticipatedby publication in any document or used in the country elsewhere inthe world before the data of filing of patent application with completespecification i.e., the subject matter has not fallen in public domainor it does not form part of the state of the art.

Inventive step means a feature of an invention that involvestechnical advancement as compared to the existing knowledge orhaving economic significant or both and that makes the invention notobvious to a person skilled in the art. Capable of industrialapplication means that the invention is capable of being made orused in an industry.

NOVELTY

An invention will be considered novel if it does not form apart of the global state of the art. Information appearing inmagazines, technical journals, books, newspapers etc. Constitute thestate of the art. Oral description of the invention in aseminar/conference can also spoil novelty. Novelty is assessed inglobal context. An invention will cease to be novel if it has beendisclosed in public through any type of publications anywhere in the


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world before filing a patent application in respect of the invention.Therefore it is advisable to file a patent application before publishinga paper if there is a slight chance in the country of invention may bepatentable. Prior use of the invention in the country of interestbefore the filing date can also destroy the novelty.

Novelty is determined through extensive literature and

patent searches. It should be realized that patent search is essentialand critical for ascertaining novelty as most of the informationreported in patent documents do not be a major breakthrough. Noinvention is small or big. Modification to an existing state of the art,process or product or both, can also be candidates for patentprovided these were not earlier known. In a chemical process, forexample, use of new reactants, use of catalyst, new processcondition can lead to patentable invention.

INVENTIVENESS (NON-OBVIOUSNESS)

A patent application involves an inventive step if theproposed invention is not obvious to a person skilled in the art i.e.,skilled in the subject matter of the patent application. The prior atshould not point towards the invention implying that the practitionerof the subject matter could not have thought about the inventionprior to filing of the patent application. Inventiveness cannot bedecided on the material contained in unpublished patents. The

complexity or the simplicity of an inventive step does not have anybearing on the grant of a patent. In other words a very simpleinvention cans quality for patent. If there is an inventive stepbetween the proposed patent and the prior art at the point of time,then an invention has taken place. A mere scintilla of invention issufficient to found a valid patent. It may be often difficult to establishthe inventiveness especially in the area of up coming knowledgeareas. The reason is that it would depend a great deal on theinterpretative skills of the inventor and these skills will really be afunction of knowledge in the subject area.

Usefulness

An invention must possess utility for the grant of patent.No valid patent can be granted for an invention devoid of utility. Thepatent specification should spell out the various uses and themanner of practicing them, even if considered obvious. If you are


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claiming a process, you need not describe the use of the compoundproduced thereby. Nevertheless it would be safer to do so. But if youclaim a compound without spelling out its utility, you may be denieda patent.

Non patentable inventions

An invention may satisfy the conditions of novelty,inventiveness and usefulness but it may not quality for a patentunder the following situations:

(i) An invention which is frivolous or which claims anythingobviously contrary to well established natural laws e.g. different typesof perpetual motion machines.

(ii) An invention whose intended use or exploitation would becontrary to public order or morality or which causes serious prejudiceto human, animal or plant life or health or to the environment e.g., aprocess for making brown sugar will not be patented.

(iii) The mere discovery of a scientific principal or formulation ofan abstract theory. E.g., Raman Effect and theory of relativity cannotbe patented.

(iv) The mere discovery of a new forma of a knownsubstance which does not result in enhancement of the known efficacyof that substance or the more discovery of any new property or new

machine or apparatus unless such a known process result in a newproduct or employs at least one new reactant. For the purpose of thisclause, salts esters, polymorphs, metabolites, pure from, particularsize, isomers, mixtures of isomers, complexes, combinations and otherderivatives of known substance shall be considered to be the samesubstance unless they differ significantly in properties with regard toefficiency.

(v)A substance obtained by a mere admixture resulting only inaggregation of the properties of the component thereof or a process forproducing such a substance.

(vi) The mere arrangement or rearrangement or duplicate offeatures of known devices each functioning independently of oneanother in a known way. If you put torch bulbs around and umbrellaand operate them by a battery so that people could see you walking inrain when it is dark, then this arrangement is patentable as bulbs andthe umbrella perform their functions independently.


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(vii) A method of agriculture or horticulture. For example, themethod of terrace farming cannot be patented.

(viii) Any process for medical, surgical, curative, prophylactic,diagnostic, therapeutic or other treatment of human beings or anyprocess for a similar treatment of animal to render them free of disease

or to increase economic value or that of their products. For example, anew surgical technique for hand surgery for removing contraction is not

patentable.(ix) Inventions relating to atomic energy;(x) Discovery of any living thing or non-living substance occurring

in nature.(xi) Mathematical or business methods or a computer

program per se or algorithms.(xii) Plants and animals in whole or any part thereof other

than microorganism but including seeds, verities and species and

essentially biological process for production and propagation of plantsand animals;

(xiii) A presentation of information.(xiv) Topography of integrated circuits.(xv) A mere scheme or rule or method of performing mental

act or method of playing games.(xvi) A invention which, in effect, is traditional knowledge or

which is aggregation or duplication of known component orcomponents.

A computer program per se as such has not been defined inthe act but would generally tend to mean that a computer programwithout any utility would not be patentable. Protection of seeds andnew plant varieties is covered under a different act, which providesa protection for a period of 10 years. Similarly topography ofintegrated circuits is protect through yet a different act

TERM OF THE PATENT:

Term of a patent will be 20 years from the date of filing forall types of invention

APPLICATION:

In respect of patent applications filed, following aspects willhave to be kept in mind.


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Claim or claims can now relate to single invention or group ofinvention linked so as to single inventive concepts.

Patent application will be published 18 months after the dateof filing.

Applicant has to request for examination 12 months withinpublication or 48 months from date of application whichever is later. noperson receding in India shall, except under the authority of a returnpermit sought in the manner prescribed and granted by or on behalf ofthe controller, make or cause to be made any applicant outside Indiafor the grant of a patent for an invention unless (a) an applicant for apatent for the same invention has been made in India, not less than sixweeks before the application outside India; and (b) either no directionhas been given under the secrecy clause of the act or all such directionhave been revoked.

PROVISIONAL SPECIFICATION:

A provisional specification is usually filled to establishpriority of the invention in case the disclose invention is only atthe conceptual stage and a delay is expected in submitting fulland specific description of the invention. Although, a patentapplication accompanied with provisional specification does notconfer any legal patent rights to the applicant, it is, however, avery important document to establish the earliest ownership of an

invention. The provisional specification is a permanent and theindependent scientific cum legal document and now amendmentis allowed in this. No patent is granted of bases of a provisionalspecification. It has to be followed by a complete specification forobtaining a patent for the said invention. Complete specificationmust be submitted within 1 months of filing the provisionalspecification. This period can be extent by three months. It is notnecessary to file an application with provisional specificationbefore the complete specification. An application with completespecification can be filed right at the first instance itself.

2. Trademarks:

A trademark is a distinctive sign that identifies certaingoods or services those produced or provided by a specific person oran enterprise. It may be one or combination of words, letters, andnumerals. They may consists of drawings , symbols, three-


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dimensional signals such as the shape and packaging of goods,audible signs such as music or vocal sounds, fragrances, or coloursused as distinguishing features. It provides protection to the ownerof the mark by ensuring the exclusive right to use it to identify thegoods or services, or to authorize another to use it in return for

payment.It helps consumers identify and purchase a product or

service because its nature and quality, indicated by its uniquetrademark, meets their needs. Registration of trademark is primafacie proof of its ownership giving statutory right to the proprietor.Trademark rights may be held in perpetuity. The initial term ofregistration is for 10 years; thereafter it may be renewed from timeto time.

Trademarks

A trademark is a distinctive sign, which identifies certaingoods and services as those produced or provided by a specificperson or enterprise. Trademarks may be one or combination ofwords, letters, and numerals. They may also consist of drawings,symbols, three dimensional signs such as shape and packaging ofgoods, or colours used as distinguishing feature. Collective marks areowned by the association whose members use them to identify themwith a level of quality. Certification marks are given for compliancewith defined standards. (Example ISO 9000). A trademark providesto the owner of the mark the exclusive right to use it to identify

goods or services, or to authorize others to use it in return for someconsideration (payment).

Well- known trademark in relation to any goods andservices, means a mark which has become so popular to asubstantial segment of the public which uses such goods or receivessuch services that the use of such mark in relation to other goods orservices would be likely to be taken as indicating a connection in thecourse of trade or rendering of services between those goods orservices and the person using the mark in relation to the first-mentioned goods or services.

Enactment of the Indian Trademarks Act 1999 is a big stepforward from the Trade and Merchandise Marks Act 1958 and theTrademark Act 1940. The newly enacted Act has some features notpresent in the 1958 Act and these are :-

1. Registration of service mark, collective marks and

certification trademarks.


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2. Increasing the period of registration and renewal from 7

years to 10 years.

3. Allowing filling of single application in registration in

more than one class.

4. Enhanced punishment of offences related to

trademarks.

5. Exhaustive definitions for terms frequently used.

6. Simplified procedure for registration of registered users

and enlarged scope of permitted use.

7. Constitution of an Appellate Board for speedy disposal of

appeals and rectification applications which at present lie beforeHigh Court.

Well-known trademarks and associated trademarkA well-known trademark in relation to any goods or services

means a mark which has become known to a substantial segment ofthe public that uses such goods or receives such services. AssociatedTrademarks are, in commercial terms, marks the resemble eachother and are owned by the same owner, but are applied to thesame type of goods or services. For example, a company dealing in

readymade garments may use associated marks for shirts, trousersetc. Which means trademarks deemed to be, or required to be,registered as associated trademarks under this Act?

Service marksThe Indian act of 1958 did not have any reference to service

marks. Service means service of any description that is madeavailable to potential users and includes the provision of services inconnection with the business of industrial or commercial matterssuch as banking, communication, education, financing, insurance,chit funds, real estate, transport, storage, material treatment,

processing, supply of electrical or other energy, boarding, lodging,entertainment, amusement, construction, repair, conveying of newsor information and advertising. Marks used to represent suchservices are known as service marks.

Certification Trademarks and collective marksA Certification trademark means a guarantee mark which

indicates that the goods to which it is applied are manufactured in a


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particular way or come from a certain region or use some specificmaterial or maintain a certain level of accuracy .The goods mustoriginate from a certain region rather from a particular trader.Certification marks are also applicable to services and the sameparameters will have to be satisfied. Further these marks are

remittable just like any other trademark. Agmark used in India for avarious food items is a kind of certification mark was not in vogue at

the time of introduction of Agmark. A Collective marks means atrademark distinguishing from those of others, the goods or servicesof members of an association (not being a partnership within themeaning of the Indian partnership Act, 1932), which is the proprietorof the mark.

Term of a registered trademarkThe initial registration of a trademark shall be for a period of

ten years but may be renewed from time to time for an unlimitedperiod by payment of the renewal fees.

Copyrights and related rights:Copyright is a legal term describing rights given to creators for

their literary and artistic works. The kinds of works covered bycopyright include: literary work such as novels, poems, plays,reference works, newspapers and computer programs; artistic wokssuch as paintings, drawings, photographs and sculpture;architecture; and advertisements, maps and technical drawings.

Copyright subsists in a work by virtue of creation; hence its notmandatory to register .However, registering a copyrights providesevidence that the copyright subsists in the work and creator in thework.

Creators often sell the rights of their works to individuals orcompanies best able to market their works in return for payment.These payments are made depending on the actual use of the work,and are then referred to as royalties. These economic rights have atime limit, (other than photographs) is for life of author plus sixtyyears after creators death.

CopyrightsCopyright is a right, which is available for creating an original

literary or dramatic or musical or artistic work. Cinematographicfilms including sound track and video films and recordings on thedisk, tapes, perforated roll or other devices are covered bycopyrights. Computer programs and software are covered underliterary works and are protected in India under copyrights. The copy


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right Act,1957 as amended in 1983,1992,1994 and 1999 governscopyright protection in India. The total term of protection in India.The total term of protection for literary work is the authors life plussixty years. for cinematographic films, records, photographs,posthumous publications, anonymous publication, works of

government and international agency the term is sixty years fromthe beginning of the calendar year following year in which the work

was published. For broadcasting the term is 25 years from thebeginning of the calendar year following year in which the broadcastwas made. Copyright gives protection for the expression of an ideaitself. For example, many authors write text books on physicscovering various aspects like mechanics, heat, optics etc. eventhough these topics are covered in several books by different authors, each author will have copyright on the book written by him/her,provided the book is not the copy of some other books published

earlier. India is the member of the Berne convention, aninternational treaty on copyright. Under this convention, registrationof copyright is not an essential requirement for protecting the right.It would, therefore, mean that the copyright on a work created inIndia would be automatically and simultaneously protected throughcopyright in all the member countries of Berne convention. Themoment an original work is created, the creator starts enjoying thecopyright. However, an indisputable record of the date in which thework was created must be kept. When a work is published with theauthority of the copyright owner, a notice of copyright is placed on

publicly distributed copies. The use of copyright notice is optional forthe protection of literary and artistic works. It is, however, a goodidea to incorporate a copyright notice. As violation of copyright is acognizable offence, the matter can be reported to the police station.It is advised that the registration of copyright in India would help inestablishing the ownership of the work. The registration can be doneat the office of the registrar of copyrights in New Delhi. It is also benoted that the work is noted for public inspection once the copyrightis registered.

Coverage provide by Copyright(i) Literary, dramatic and musical work. Computer programs/softwareis covered within the definition of literary work.

(ii) Artistic work(iii) Cinematographic film, which include sound track and video films(iv)Recording on any disc, tape, performed roll or other devices.


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Transfer of copyrightThe owner of the copyright in an existing work or prospective ownerof the copyright in a future work may assign to any person the copy-right, either wholly or partially in the following manner.I) for the entire world or for a specific country or territory; or

2) for the full term of copyright or part thereof; or3) relating to all the rights comprising the copyright or only part of

such rights.

4. Geographical Indications (GI):GI are signs used on goods that have a specific geographical originand possess qualities or a reputation that are due to that place oforigin. Agricultural products typically have qualities that derive fromtheir place of production and are influenced by specific local factors,such a as climate and soil. They may also highlight specific qualities

of a product, which are due to human factors that can be found inthe place of origin of the products, such as specific manufactureskills an traditions.

A geographical indication points to a specific place or region ofproduction that determines the characteristic qualities of the productthat originates therein. It is important that the product derives itsqualities and reputation from that place. Place of origin may be avillage or town, a region or a country.

It is an exclusive right given to a particular community hence thebenefits of its registration is shared by all members of thecommunity. Recently the GIs of goods like Chanderi Sarees, KulluShawls, Wet Grinders etc., have been registered.

Keeping in view the large diversity of traditional products spread allover the country, the registration under GI will be very important infuture growth of the tribes/ communities/skilled artisans associatedin developing such products.

Application for GIs registration

Any association of persons or producers or any organization orauthority established by or under any law for the time being in forcerepresenting the interest of the producers of the concerned goods,who are desirous of registering geographical indication in relation tosuch goods shall apply in writing to the Registrar in such from and in


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such manner and accompanied by such fees as may be prescribedfor the registration of the geographical indication.

Punishment for falsifying GIA sentence of imprisonment for a term between six months to three

years and a fine between fifty thousand rupees ant two lakh rupeesis provided in the Act. The court may reduce the punishment under

special circumstances.

Term of GI protection

The registration of a GI shall be for a period of ten years buy maybe renewed from time to time for an unlimited period by payment ofthe renewal fees.

5. Industrial Designs:

Industrial designs refer to creative activity, which results in theornamental or formal appearance of a product, and design rightrefers to a novel or original design that is accorded to the proprietorof a validly registered design. Industrial designs are an element ofintellectual property. Under the TRIPS agreement, minimumstandards of protection of industrial designs have been provided for.

As developing country, India has already amended its nationallegislation to provide for these minimal standards.

The essential purpose of design law is to promote and protect thedesign element of industrial production. It is also intended topromote innovative activity in the field of industries. The existinglegislation on industrial designs in India is contained in the NewDesigns Act, 2000 and this Act will serve its purpose well in therapid changes in technology and international development. Indiahas also achieved a matured status in the field of industrial Designs

and view of globalization of the economy, the present legislation isaligned with the changed technical and commercial scenario andmade to conform to international trends in design administration.This replacement Act is also aimed to enact a more detailedclassification of design to conform to the international system and totake care of the proliferation of design related activities in variousfields.


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Industrial DesignWe see so many varieties and brands of the same product(e.g car,television , personal computer, a piece of furniture etc) in themarket which look quite different from other. If the products have

similar functional features or have comparable price tags, the eyeappeal or visual design of a product determines the choice. Even if

the similarities are close , a person may decide to go for a moreexpensive item because that item has a better look or colourscheme.

What is being said is that the external design or colourscheme or ornamentation of a product plays a key role indetermining the market acceptability of the product over othersimilar products. If you have ad design that gives you an advantage,

then you must have a system to protect its features, objectivesthere would be wide scal imitation.

Design as per the Indian act means the features of shape,configuration, pattern, ornament or composition of lines or colours orcomposition of lines or colours applied to any article- whether in twodimension or three dimension or in both forms by any industrialprocess or means whether manual, mechanical or chemical, separateor combined, which in the finished article appeal to and are judgedsolely by the eye; but it does not include any mode or principle ofconstruction or anything which is in substance a mere mechanical

device. In this context an article means any article of manufactureand any substance, artificial or partly artificial and partly natural;and includes any part of an article capable of being made and soldseparately. Stamps, labels, tokens, cards etc cannot be consideredan article for the purpose of registration of design because once thealleged design i.e., ornamentation is removed only a piece of paper,metal or like material remains and the article referred to ceases toexist. An article must have its existence independent of the designapplied to it. So, the design as applied to an article should beintegral with the article itself.

The essential requirements for the registration of design1. The design should be new or original, not previously

published or used in any country before the date of application for

registration. The novelty may reside in the application of a known

shape or pattern to anew subject matter. However, if the design for


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which the application is made does not involve any real mental

activity for conception, then registration may not be considered.

2. The design should relate to features of shape,

configuration, pattern or ornamentation applied or applicable to an

article. Thus, designs of industrial plans, layouts and installations

are not registrable under the act.

3. The design should be applied or applicable to any article

by any industrial process. Normally, designs of artistic nature such

as painting, sculptures and the like which are not produced inn bulk

by any industrial process are excluded from registration under the

act.

4. The features of the designs in the finished article shouldappeal to and are judged solely by the eye. This implies that the

design must appear and should be visible on the finished article, for

which it is meant. Thus, any design in the inside arrangement of a

box, money purse or admiral may not be considered for showing

such articles in the open state, as those articles are generally put in

the market in the closed state.

5. Any mode or principle of construction or operation or

any thing, which is in substance a mere mechanical device, wouldnot be a registrable design. For instance, a key having its novelty

only in the shape of its corrugation or bend at the portion intended

to engage with levers inside the lock it is associated with, cannot be

registered as a design under the act. However, when any design

suggests any mode or principle of construction or mechanical or

other action of a mechanism, a suitable disclaimer in respect

thereof is required to be inserted on its representation, provided

there are other registrable features in the design.

6. The design should not include any trademark or property

mark or artistic works.

7. It should be significantly distinguishable from known

designs or combination of known designs.


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8. it should not comprise or contain scandalous or obscene

matter.

Duration of the registration of a design

The total term of a registered design is 15years. Initially theright is granted for a period of 10 years, which can be extended, byanother 5years by making an application and by paying a fee ofRs.2000/- to the controller before the expiry of initial 10yearsperiod. The proprietor of design may make the application for suchextension even as soon as the design is registered.

Strategy for protectionFirst to file rule is applicable for registrability of design. If

two or more applications relating to an identical or a similar design

are filed on different dates, the first application will be consideredfor registration of design. Therefore the application should be filledas soon as you are ready with the design. After publication in theofficial gazette payment of the prescribed fee of Rs.500/- all

registered designs are open for public inspection. Therefore, it isadvisable to inspect the register of designs to determine whether thedesign is new or not. There is yet another important provision forensuring that the design is different from anything published anywhere in the world. This is quite a strict condition. There would bemany designs, which are not protected, and these would not be part

of any database maintained by design offices. An applicant has totake the responsibility of ensuring that he has done an extensivesearch and satisfied himself of the novelty of his design. However, inpractice as the cost involved in filing and obtaining a designregistration is not high, a design application is made if the stakesinvolved is not high and you have not copied any7 design.. Theapplication for registration of design can be filed by the applicanthimself or through a professional person (i.e. patent agent, legalpractitioner etc.) An agent residing in India has to be employed bythe applicant not resident of India.

6. Trade secrets:It may be confidential business information that provides an

enterprise a competitive edge which may be considered a tradesecret. Usually these are manufacturing or industrial secrets andcommercial secrets. These include sales methods, distributionmethods, consumer profiles, and advertising strategies, lists of


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suppliers and clients, and manufacturing processes. Contrary topatents, trade secrets are protected without registration.

A trade secret can be protected for an unlimited period oftime but a substantial element of secrecy must exist, so that, expectby the use of improper means, there would be difficulty in acquiring

the information. Considering the vast availability of traditionalknowledge in the country the protection under this will be very

crucial in reaping benefits from such type of knowledge. Tradessecret and traditional knowledge are also interlinked/associated withthe geographical indications.

7. Layout design for integrated circuits:Semiconductor integrated circuit means a product having

transistors and other circuitry elements, which are inseparablyformed on a semiconductor material or an insulating material or

inside the semiconductor material and designed to perform anelectronic circuitry function. The aim of the semiconductorintegrated circuits layout-design Act 2000 is to provide protection ofintellectual property right (IPR) in the area of semiconductorintegrated circuit layout designs and for matters connectedtherewith or incidental thereto. The main focus of SICLD act is toprovide for routes and mechanism for protection of IPR in chiplayout designs created and matters related to it. the SICLD actempowers the registered proprietor of the layout design an inheritright to use the layout design, commercially exploit it and obtain

relief in respect of any infringement. The initial term of registrationis for 10 years; thereafter it may be renewed from time to time.Department of information technology. Ministry of communicationsand information technology is the administrative ministry lookingafter its registration and other matters.

8. Protection of New Plant Variety:The objective of this act is to recognize the role of

farmers as cultivators and conservers and the contribution oftraditional, rural and tribal communities to the countrys agro

biodiversity by rewarding them for their contribution and to simulateinvestment for R & D for the development new plant varieties tofacilitate the growth of the seed industry. The plant varietyprotection and farmers rights act 2001 was enacted in India toprotect the new plant variety; the act has come in

Comsumer Prot Act

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