articles
Intellectual Property
Plant variety protection – Procedural infirmities, not impacting eligibility of applicant/application for registration, are not fatal
19 April 2024
The article discusses the recent Delhi High Court Division Bench decision which has held that procedural infirmities, which have no impact on the eligibility of the Applicant to apply for a plant variety application or on the eligibility of the application for registration, are not fatal to the registration, unless such infirmities are due to willful misrepresentation or to gain any undue advantage.
Corporate, Regulatory
MEITY Advisory: Dawn of AI Regulation in India or a false start
01 April 2024
The Ministry of Electronics and Information Technology has on 15 March 2024 issued an advisory on use and deployment of artificial intelligence tools. The advisory subsumes a previous advisory dated 1 March 2024 on this subject. As part of the now expanded diligence requirements as per new advisory, the article elaborately discusses what the new advisory now requires the intermediaries to ensure.
International Trade & WTO
Anti-dumping duty – Overview of methodologies of calculating dumping margins
29 March 2024
This article intends to discuss different methodologies for comparing the export prices with the domestic selling prices in the chosen investigation period, as prescribed under the WTO’s Anti-dumping Agreement and the practices followed in India, the United States of America and the European Union for this purpose. Elaborately discussing the three methodologies, with descriptive illustrations, etc., the author points out that the dumping margins are not the same.
Customs
Game-changing Customs and FTP changes: What you need to know after the 2024 Interim Budget
28 March 2024
The article discusses few recent changes which one needs to know under Customs and Foreign Trade Policy. The Ministry of Commerce has extended the RoDTEP benefit to Advance Authorisation holders, Export Oriented Units and units in Special Economic Zone, and has relaxed the mandatory Quality Control Order compliance for import of inputs under Advance Authorisation and by EOU, for use in exports.
Goods and Services Tax
The ever-evolving advertising industry: Is GST ready for the same?
27 March 2024
The article highlights that one needs to examine whether sports marketing is in the nature of ‘advertisement/sale of advertising space and time service’ or ‘sponsorship service’. According to the authors, considering the overlapping nature of advertisement and sponsorship services, taxing advertisement under forward charge and allowing full ITC of the expenses, while taxing sponsorship under reverse charge and disallowing credit of GST, is creating an artificial discrimination.
Direct Tax
Disallowance under Section 40(a)(i) on payment made to non-residents – Whether violative of Non-Discrimination Article in tax treaty?
21 March 2024
This article seeks to analyze the applicability of the non-discrimination article in tax treaties on disallowance of expenses on payment made to non-residents without withholding the applicable taxes. Decoding the legal position, the authors delve into the litigation trends and ponder over the question as to whether Section 40(a)(i) of the Income Tax Act, 1961 in its present form is violative of non-discrimination Article in tax treaty.
Intellectual Property
Disclaimers – A credible way of amendment in patent claims and specification
15 March 2024
One of the permissible ways of amendments to claims and/or specification is to incorporate suitable disclaimers during the patent prosecution and at the post grant stage. The article aims to bring down the perspectives of the use of disclaimers as a provision to amend claims and/or specification. It focusses on provisions available under Section 59 of the Patents Act, 1970 and a glimpse on such provisions in major jurisdictions such as US and EU that are of greater interest.
Regulatory
Decoding Fiduciaries and Processors: The DPDPA lens
04 March 2024
The article dives deep into the understanding of certain key actors engaged in the processing of personal data – Data Fiduciaries and Data Processors. Observing that while Fiduciaries, by their nature, are expected to exercise decisional control over the purposes and means of processing, and Processors act on the former’s instructions, the article outline various complex situations where the roles blur.
International Trade & WTO
The WTO’s 13th Ministerial Conference – Finding Order in times of chaos?
01 March 2024
This article intends to provide an overview of some of the key issues for negotiation at MC 13 and the importance of these issues for WTO Members. It talks about Agreement on Investment Facilitation and Development, Agreement on Fisheries Subsidies, Permanent Solution for Public Stockholding for Food Security Purposes, WTO Dispute Settlement Reform, and Electronic Commerce.
Goods and Services Tax
Secondment or employment: Court’s observation opens new opportunities for tax risk mitigation in 2024
29 February 2024
The article discusses the observation of the Supreme Court in Northern Operating Systems case, recent investigations on the issue, CBIC Instruction, interim orders passed by different High Courts on factual matrix of the cases, legal position under the GST law and the way forward. Elaborating on the test / factors to determine the employee-employer relationship, the article deliberates on application of said tests/factors on the Supreme Court decision, and the factual differentiation of case.
Intellectual Property
The Ibrutinib saga: Delhi High Court restrains generics from manufacturing and marketing Ibrutinib
28 February 2024
The article discusses the recent decision of Single Judge of the Delhi High Court adjudicating a batch of suits filed by Pharmacyclics LLC and Johnson and Johnson Pvt. Ltd., pertaining to the infringement of Indian Patent 262968 against Hetero Labs, Natco Pharma, BDR Pharma, Alkem Labs and Shilpa Medicare for manufacturing and marketing Ibrutinib. The Court restrained the Defendants in all suits from manufacturing and marketing Ibrutinib, pending final disposal of the suits.
Intellectual Property
Keywords as trademarks not a source identifier – The legal tussle involving Google adwords
27 February 2024
The article discusses the recent judgment of the Delhi High Court in the case of MakeMyTrip India Pvt. Ltd, Booking Netherlands & Booking India and Google LLC in which the court reiterated that use of trademark as key words of search engines displays of someone else advertisement, absent any confusion or unfair advantage, would not infringe the trademark.
Direct Tax
Will the recent ruling on Benami law dig up old deals?
19 February 2024
The Article discusses the recent decision by the Delhi Appellate Tribunal in the case of Prism Scan Express Pvt Limited v. DCIT . The decision provided a wakeup call to all those who were under the belief that their old trades would not come under the glare of Benami Law, taking shelter of the decision of the Apex Court in the case of Ganpati Dealcom Pvt Ltd v. UoI which held that the Benami Transactions (Prohibition) Amendment Act, 2016 shall not apply retrospectively.
Intellectual Property
Trademark tangle: Deepika Padukone’s beauty brand dances through the tunes of ‘use in a trademark sense’ v. ‘descriptive use’
15 February 2024
A recent order passed by the Delhi High Court in favour of DPKA Universal Consumer Venture, rejecting the plea of interim injunction by Lotus Herbals against the former’s use of ‘Lotus Splash’, has garnered a lot of attention. The decision discusses the question of infringement, with specific reference to Section 30(2)(a) of the Trade Marks Act, 1999. The article discusses this interim order and analyses the jurisprudence on Section 30(2)(a).
Intellectual Property
Personality Rights: Protection under IP laws
15 February 2024
There are two discernible facets when a celebrity wants to protect their personality rights: first, the right to protect one’s image from being commercially exploited without permission by treating it as a tort of passing off and second, the right to privacy which entails one’s right to be left alone. Analysing jurisprudential development in US and UK, the article elaborately summarises many case law governing jurisprudence in India on IP laws.
Intellectual Property
‘Audi alteram partem’, yes, but not for Opponent in patent examination proceedings!
14 February 2024
The Article discuss the Delhi High Court decision in the matter of Novartis AG v. Natco Pharma & Anr. where the Court held that clear distinction between the examination and the opposition process of patents is essential, and merging these distinct processes would render the entire system unwieldy and counterproductive. The High Court was deliberating on the question as to whether the opponent has a right to be heard..
Corporate
Adjudication of penalties by Registrar of Companies: Scope and its ambit
31 January 2024
The ‘Registrar’ of Companies (‘RoC’) under the Companies Act, 2013 (‘Act’) is entrusted with the duty to register the companies in India and to discharge various functions under the Act, one of them being to adjudicate penalties in accordance with Section 454 of the Act
Corporate, Regulatory
Consent Managers under Digital Personal Data Protection Act – Bridging the gap between Data Principal and Data Fiduciary
30 January 2024
The article discusses the measures introduced under the Digital Personal Data Protection Act, 2023 (‘DPDP Act’) to address challenges around management of data principals’ consent. The authors note that it is important for entities offering consent management services to ensure that their activities do not fall within the ambit of data processing.
International Trade & WTO
Trade remedial measures in India – 2023 year-end review
30 January 2024
Trade remedy measures continue to remain a bulwark for the protection of the domestic industry from unfair imports. With the government’s increasing emphasis on the ‘Make in India’ objective and the Indian economy booming, trade remedy measures retain their importance as an instrument to balance the interests of domestic producers with that of users and importers.