India: Legal Recognition / Enforcement of Well Known Marks in India A Service Marks Perspective

Last Updated: 13 July 2005 Article by Ashish Gosain Fox Mandal & Co

With the rise and growth of the services sector in India, Trade marks have evolved into uncharted realms of regulatory issues. Therefore, it is never understated that the understanding of Trademark and passing-off law is to be revisited in terms thereof. This coupled with Franchising emerging as a vehicle of foreign investment in areas like consumer goods in last few decades raised novel and intricate issues of protection of good will of marks possessing international or transborder reputation. The rise and spread of transnational corporations in liberalised economies like India have underscored the issue in concept and reality. To begin with, a look at the international developments help us put any legal framework in appropriate perspective. Although there is no specific indication within the Agreement, it appears that trademarks having international repute in other jurisdictions be accorded with a national treatment no less favourable than those owned by its own nationals. In order to further understand the concept and definition of well known marks, we refer to the definition under Article 6 bis of the Paris Convention as incorporated in various legal systems. Under Section 56 of the Trade Marks Act, 1994 of England states1 that: i. ii. the applicant be a member of a Convention country; or is domiciled in , or has a real and effective industrial or commercial establishment in, a convention country,

whether or not that person carries on business, or has any goodwill, in the United Kingdom; and references to the proprietor of such trade mark are to be construed accordingly. Earlier, the law as stated in the celebrated British decision in the Crazy Horse2 case was in effect requiring the existence of use or commercial activity in the particular jurisdictions3 where relief was sought, in light of the territorial nature of the rights provided by trademarks. However, certain jurisdictions had divergent views even then, as was the case of Hongkong 4where international reputation was recognised. In this back drop of International developments we shall study the Indian legal position on this aspect. Position Of Law In India With Respect To Well-Known Marks To begin with there are two aspects to the scope of protection of Well-Known Marks in India, which are:

Determination of a mark as a well-known mark has to be done in accordance with certain criteria outlined below; [As per Trade Marks Act, 1999] Establishment of "Bad faith" in the registration of a mark violative of rights in well-known mark.

In India, to begin with, under the Trade Marks Act,1999, use of the mark is neither a relative nor absolute grounds for refusal of registration of a mark. Further, Section 2 (1) (zg) of Trade Marks Act, 1999 defines a well-known trade mark as " in relation to any goods or services, means a mark which has become so to the substantial segment of the public which uses such goods or receives such services that the use of such mark in relation to other goods or services would be likely to be taken as indicating a connection in the course of trade or rendering of services between those goods or services and a person using the mark in relation to the first mentioned goods or services." The protection to well-known marks has been accorded by enshrining the concept as a relative ground of refusal of registration of a trademark. Section 11 (2) of the Trade Marks Act, 1999 states that: (2) A trade mark whicha. b. is identical with or similar to an earlier trade mark; and is to be registered for goods or services which are not similar to those for which the earlier trade mark is registered in the name of a different proprietor, shall not be registered if or to the extent the earlier trade mark is a well-known trademark in India and theuse of the later mark without due cause would take unfair advantage of or be detrimental to the distinctive character or repute of the earlier trade mark .

An interesting aspect outlined in sub-section (3) of Section 11 of the Trade Marks Act, 1999 is another relevant consideration that works to the assistance in protection of well-known trade marks. (3) A trade mark shall not be registered if, or to the extent that, its use in India is liable to be prevented a. b. by virtue of any law particular the law of passing off protecting an unregistered trade mark used in the course of trade; or by virtue of law of copyright .

Sub section (4) of the said provision states that: (4) Nothing in this section shall prevent the registration where the proprietor of the earlier mark or other earlier right consents to the registration, and in such case the Registrar may register the mark under special circumstances under section 12. Further the explanation states that: Explanation- For the purposes of this section, earlier trade mark means a. a registered trade mark or convention application referred to in section 154 which has a date of application earlier than that of the trade mark in question , taking account, where appropriate, of the priorities claimed in respect of the trade marks; a trade mark which, on the date of the application for registration of the trademark in question, or where appropriate, of the priority claimed in respect of the application , was entitled to protection as a well-known trade mark .

b.

Subsection (5) requires that registration can be refused on these grounds if and only if objection is raised on the grounds stated above in opposition proceedings. Determination Of Well-Known Marks- Some Factors Of Consideration Now the determination as to what is a well-known mark has been based on the following factors mentioned in sub-section (6) of section 11, Trade Marks Act, 1999 which reads as follows : (6) The Registrar shall, while determining whether a trade mark is a well-known trade mark , take into account any fact which he considers relevant for determining a trade mark as a well-known trade mark includingi. ii. iii. the knowledge or recognition of that trade mark in the relevant section of the public including knowledge in India obtained as a result of promotion of that trade mark ; the duration, extent and geographical area of any use of that trade mark; the duration, extent and geographical area of any promotion of the trade mark , including advertising or publicity and presentation, at fairs or exhibition of goods or services to which the trade mark applies; the duration and geographical area of any registration of or any application for registration of that trade mark under this Act to the extent they reflect the use or recognition of that trade mark; the record of successful enforcement of rights in that trade mark, in particular, the extent to which the trade a mark has been recognised as a well-known trade mark by any court or Registrar under that record.

iv. v.

Sub section relates to the determination of knowledge outlined in clause (i) of sub-section (6) of section 11 of Trade Marks Act, 1999. It shall take into account-The number of actual or potential consumers of the goods or services; -The number of persons involved in the channels of distribution of the goods or services; -The business circle dealing with those goods or services, Subsection (9) does not require that for a trade mark to be a well-known one that- it has been used in India; - That the trade mark has been registered; - that the application for the registration has been filed in India;

(a) that the trade mark is well known in; or (b) has been registered in; or (c) in respect of which an application for registration has been filed in any jurisdiction other than India; or - that the trade mark is well known to the public at large in India. While considering an application for registration of a trade mark and opposition filed in respect thereof, the Registrar shall(i) protect a well-known trade mark against the identical or similar trade marks; (ii) take into consideration the bad faith involved either of the applicant or the opponent affecting the right relating to the trade mark. Thus, it is clear that once bad faith of the applicant in filing an application for registration can be shown, then, even a registered trade mark granted before the commencement of the Trade Marks Act, 1999 violative of rights in a wellknown mark can be refused protection. [ sub-section (11) of section 11 of the Trade Marks Act,1999] Relevant Judicial Doctrines: In order to understand how a mark can be determined to be a well-known mark, let us look at the Doctrine of transborder reputation postulated by the courts in this regard. We shall state the legal position before the commencement and Trade Marks Act, 1999 in order to ascertain the factors considered to establish whether a trade mark is a well-known mark. In a decision of the Division Bench of the Bombay High court5, the division bench held that: " We must express our dissent with the view taken in this case. In our judgement it is not possible to conclude that the goodwill or the reputation stands extinguished merely because the goods are not available in the country for some duration. It is necessary to note that the goodwill is not limited to a particular country because in the present days, the trade is spread all over the world and the goods are transported from one country to another very rapidly and on extensive scale. The goodwill acquired by the manufacturer is not necessarily limited to the country where the goods are freely available because the goods though not available are widely advertised in newspapers periodical, magazines and in other medias . The result is that though the goods are not available in the country, the goods and the mark under which they are sold acquires wide reputation. Take for example, the televisions, and Video Cassett recorders manufactured by National, Sony or other well Japanese concerns. These televisions and V.C.Rs are not imported in India and sold in open market becauseof trade restrictions, but is it possible even to suggestthat the word "National" or "Sony" has not acquired reputation in this country? In our judgement, the good will or reputation of goods or marks does not depend on its availability in a particular country. It is possible that the manufacturer may suspend their business activities in a country for short duration but that fact would not destroy the reputation or goodwill acquired by the manufacturer. An identical view was taken by division bench of Mr Justice S.K Desai and Mr. Justice Bharucha in a judgement dated July 24,1988 in Appeal No. 368 of 1986.The question for consideration before the division bench was whether the goodwill in trade mark "7OCLOCK"stood extinguished because of non-availability of blades with the mark in India after year 1958.the division bench turned down the claim by pointing out various reasons and we are in entire agreement with the observations made in the judgement made in the judgement on this aspect" The Whirlpool case6 considered the concept for the first time in detail. Here the plaintiff-corporation was carrying on business in several countries, had not renewed registration for trademark in respect of class covering washing machines due to foreign trade restriction in India prevalent after 1977 and thus the registration had lapsed. The plaintiff-Company proceeded to file a suit for passing-off against the defendants. An injunction was granted by the Delhi High court (reaffirmed by the Supreme Court7) The doctrine of " transborder reputation" was recognised outlined and reliance was placed on a host of cases 8 (at paragraph 17) .These cases recognised that the reputation of a trader , trading or carrying on the business in another country, can travel to a country where he had carried no business. The traders trans-border reputation can be on the basis of the extensive advertisements and publicity. Such a trader could obtain injunction a court where he was not trading, to protect his reputation. In Apple Computer Inc case it was stated in reliance (at page 137) as was held that: "It is not necessary in the context of the present day circumstances the free exchange of information and advertising through newspapers, magazines, video television, movies, freedom of travel between various parts of the world, to insist that a particular plaintiff must carry on business in a jurisdiction before improper use of its name or mark can be restrained by the court." A host of decisions have since interpreted" transborder reputaion" in a similar light 9

J. Bahri held after distinguishing the Sears case10 that: "Mere fact that the plaintiff has never manufactured any products in this country does not prevent it from acquiring the good will here in its trade mark. It is no doubt true that an action for passing off relates to business in this country. The foundation for the action for passing off is the protection of goodwill and so, one must prove the existence of goodwill in this country before obtaining a relief of passing off .The principle of law of passing off has been also made applicable to non trading business or non-profit mating bodies as well." Quoting the Wander Limited vs. Antox India11 decision, where it was held: "An infringement action is available when there is violation of specific property right acquired under and recognised by the statute. In a passing off action, however, the plaintiffs right is independent of such a statutory right to a trade mark and is against the defendant which leads to or is intended to or calculated to lead to deception." In Calvin Klein Inc vs. International Apparel Syndicate12 accepted the view of a Canadian Court of Appeal in Orkin Exterminating Co Inc vs. Pestco Co of Canada Ltd13where it was held that: "Canadians travelling in the United States are exposed to Orkins extensive advertising and the use of of its trade marks in the country. There was evidence adduced that millions of Canadians travel in the United States every year, particularly in the southern vacation states, where Orkins operations are extensive. Canadians in Canada are exposed to Orkins advertising and articles appearing in American publications which circulate here......" . The principles established in regard to the doctrine were reiterated by the case of Aktiebolaget Volvo v. Volvo Steels Limited14, however, a Division Bench of the Bombay High Court took consideration of subsequent events in terms of the intention of the party to enter the Indian market as affecting the balance of convenience, a factor that governs the discretion in grant of injunctions. However with respect to transborder reputation, a division bench held that transborder reputation is recognised by Indian courts and that actual sale in India is not necessary for a plaintiff to establish its goodwill and reputation in India. The division bench relied on the Whirpoool case where it was observed that: "Thus a product and its trade name transcends the physical boundaries of a geographical region and acquires a transborder or overseas or extra-territorial reputation not only through import of goods but also by its advertisement. The knowledge and awareness of the goods of a foreign trader and its trade mark can be available at a place where goods are not being marketed and consequently not being used. " The court placed reliance on Paragarphs 156,Volume 48 of Halsburys Laws of England which reads as follows in this regard: "156. Whether actual trade need have commenced- A passing-off action can be sustained prior to the actual commencement of trading by the plaintiff. A plaintiff may acquire a substantial reputation prior to making sales of a product or service because of advance advertising and press publicity and, in such case, may sue others who seek to trade on the reputation and goodwill that is able to be protected even before its formal incorporation and within hours of the announcement of its intended formation. Where a plaintiff has incurred considerable expense making preparations for the launch of a product which will rapidly acquire a reputation once launched, a defendant who commences advertising before the plaintiff with the intention of defeating the plaintiffs acquisition of an exclusive right to the mark concerned may be restrained by a quia timet injunction." Further reliance is placed on paragraph 180 of the same which reads: "Actions by foreign traders- A number of considerations arise when a plaintiff seeks to restrain the use in the United Kingdom of a name, mark or other indicia under which he has carried on business abroad. First , a plaintiff in any case off passing-off must prove a reputation extending to the geographical , area in which the defendants use of the name ,mark or other indicia complained of is taking place, whether this is another part of the country in which the plaintiff trades or in a different country, for if he has no reputation in the United Kingdom then the defendants use of a similar name or mark cannot involve any misrepresentation. If the plaintiff can establish that a substantial number of persons with whom the defendant intends to trade in the United Kingdom know of the plaintiffs business, so that the element of misrepresentation is established, the plaintiff must further show, as in any passing-off action, that the misrepresentation, that the misrepresentation poses a real and tangible risk of injury to his business or goodwill. However it is unclear whether there is an additional requirement that the plaintiff must carry on business in , or at least have a trade extending to , the country in which he seeks to restrain the defendant from using the mark or name, or whether the geographical separation of the plaintiffs business from the defendants is factual element which merely makes it difficult, but not impossible in all circumstances, for a plaintiff to show that the defendants activities are likely to cause him substantial damage. What is clear is that a plaintiff who has no place of business in the United Kingdom and does not directly trade there but whose

goods are imported by others can acquire a reputation and goodwill that is able to be protected. A business carried on abroad but which corresponds with customers in the United Kingdom can likewise acquire a reputation and goodwill able to be protected. It is more doubtful whether passing off can be established where the plaintiffs goods or services are not marketed in the United Kingdom but his customers who have come across his goods or services abroad reside in or come to the United Kingdom, although in one such case an interlocutory injunction was granted. However, it has been held that a plaintiff whose establishment in Paris had been adverted in England through travel agents and who had some customers in England who had visited Paris, could not maintain a passing off action in England against a defendant who has adopted the name of the plaintiffs establishment and used similar advertising with the intent of exploiting the plaintiffs reputation , because goodwill could not be acquired without actual user in England. This because be acquired without actual user in England. This decision has been criticised as wrongly decided and tenuous user in the United Kingdom has been treated as justification for protection of a reputation primarily acquired by trade abroad but the case has been cited with approval by the court of Appeal. The extent to which a reputation acquired by trading abroad may be protected in the United Kingdom may depend to some extent upon whether a trade is to be treated as a matter of law as having a separate goodwill in each country in which he trades or whether the confining of goodwill to a particular country or area is a question of fact tending on the trade patterns and circumstances involved. If goodwill is to be treated as a matter of law as stopping at frontiers there may still be cases where the defendants activities are likely to cause damage to the plaintiffs business in the country or countries where he trades." Thus the doctrine of transborder reputation which lies at the root of well-known trade marks and their legal protection is firmly entrenched in trademark jurisprudence.15 Doctrine Of Trade Connection In Relation To Goods / Services Falling Within The Same Or Different Classes Another legal doctrine that was postulated by Indian courts was in relation to the intention of the defendant in using the goodwill and reputation of the owner of a mark known to be well-known. This can be seen to be offshoot of the definition presently ascribed to a well-known mark under Indian law. This was the " Doctrine of Trade Connection" between the classes in which the mark sought to be protected was registered. It is relevant to state here that curiously, the said principles have been established in relation to trademarks covering goods only. Since service marks came into existence w-e-f from 15th September, 2003 only (when the Trade Marks Act, 1999 came into force), it appears to be a consideration to make the case for service marks difficult in as much as no suit for infringement could be instituted as service marks were not recognised earlier but passing-off actions could be maintained. In a passing off action, however it is required that an element of dishonest intention in user be established .Let us briefly look at the judicial interpretation available in support of the same. In Warnink vs. Townend & Sons (HULL) Ltd. 1979 A.C 73116, Lord Diplock identified the following five characteristics which must be represented in order to create a valid cause of action for passing-off: i. ii. iii. iv. v. a misrepresentation , made by a trader in the course of trade, to prospective customers of his or ultimate customers of goods or services supplied by him, which is calculated to injure the business or goodwill of another trader (in the sense that there is a reasonably foreseeable consequences),and which causes actual damage to a business or goodwill of the trader by whom the action is brought or (in quia timet action) will probably do so .

In Reckitt & Cdman Products vs. Borden Inc & Ors 1990 R.P.C 341, it was held that proof of fraudulent intention is not a necessary element in a cause of action for passing off .The relevance of fraud to this tort is simply that " if the intention to deceive is found, it will be readily inferred that deception will result." In Century Traders vs. Roshanlal Duggar & Co AIR 1978 Delhi 25017, a division bench held that: "In passing off cases, however the true basis of action is that the passing off by the defendant of his goods as the goods of the plaintiff injures the right of property in the plaintiff, that right of property being his right to goodwill of his business.... this right is to be protected and the balance of convenience is in favour of the person who has established a prima facie right to property." In N.R Dongre vs. Whirpool Corporation AIR 1995 Del 300, it was held that the concept and principle on which passing off action is grounded is that no man has any right to represent his goods as the goods of another. A trader needs protection of his right of priori user of a trade mark/trade name as the benefit of the name, fame, reputation and image and goodwill earned by him cannot be taken advantage by another trader by passing off his goods as those of the prior user of the trade mark or trade name . In Ellora Industries vs. Banarsi Dass AIR 1980 Delhi 254, it was held that "confusing customers as to source, is an invasion of anothers property right."18

Similarly, in Honda Motors Co Ltd. versus Charanjit Singh & Ors 2003(26) PTC 1 (Del) a passing off action was maintained by a plaintiff who was registered in respect of automobiles and power equipments against a defendant using the goodwill in the trademark in respect of pressure cookers. Further in Daimler Benz Aktiengesellschaft & Anr v Hybo Hindustan AIR 1994 Del 239, the plaintiff was using the trade mark Mercedes Benz in relation to vehicles, whereas the defendant had started using the trade mark BENZ in respect of undergarments. The Court granted injunction restraining the defendant from using the trade mark "Benz" as well as "three pointed human being in a ring." The judgement was upheld by the Supreme Court. The following observations are worth noting: "There are marks which are different from other marks. There are names which are different from other names. There are names and marks which have become household words. "Benz" as name of a Car would be known to every family that has ever used a quality car. The name "Benz" as applied to a car, has a unique place in the world. There is hardly one who is conscious of existence of the cars/automobiles, who would not recognise the name "Benz" used in connection with cars. Nobody can plead in India, where "Mercedes Benz" cars are seen on roads, where "Mercedes" have collaborated with TATAS, where there are Mercedes Benz trucks have been on roads in every large number,(known as Mercedes Benz Trucks; so long as the collaboration was there), who can plead that he is unaware of the word "Benz" as used with reference to cars or trucks. Thereafter, the court also relied upon cases19 where the class of goods in which the mark was used by the defendant was entirely different from that of the plaintiffs. Even in such cases injunction against passing off have been granted. Doctrine Of Bad Faith: Section 11 (10) (ii) of Our Act, 1999 requires us to prove the presence of bad faith in order to displace the immunity placed on marks already registered . It is pertinent to note that in respect of service marks no registration was possible until the Trade Marks Act, 1999 notified on September 15, 2003 .The element of bad faith is to be established in order to destroy the immunity to trademarksregistered before the commencement of this Act (which however, does not apply to service marks). Under the Trade Marks Act,1958 there was no such consideration in respect of other trade marks . Also this applies in respect of the Registrars determination that the reputation in a well-known mark has been dishonestly used. However, once it can be shown that material circumstances have not been revealed by the applicant to the Registrar, the registration in respect of that mark (service mark) can be invalidated. For this, we shall briefly look at the development of case law on the doctrine of bad faith. Preliminarily, the doctrine could be seen as developing from the concept of trademark dilution. In Caterpillar Inc versus Mehtab Ahmed & Ors 2002 (25) PTC 438 (Del ), the court held that : "There is no doubt that mark of the plaintiff has become synonym for quality of high degree and adoption of its name alongwith distinctive and unique characteristics of style by defendants projects propensity to trade or cash upon goodwill and reputation of the plaintiffs trademark. It is nothing but piracy of trade name. Plaintiff has a right to protect its mark reputation, goodwill and risk of dilution involv ed in the act of passing off from the unscrupulous designs of the defendants" Similarly, in Jolen Inc. versus Doctor & Company 2002 (25) PTC 29 it was held that: "It is not necessary that the association of the plaintiffs mark with his goods should be known in the countries where it is known best. Mere advertisement in other countries is sufficient if the trademark has established its reputation and goodwill in the country of its origin and countries where it is registered. In modern world, advertisements in the newspapers where party is engaged in business through overseas editions or otherwise. Even if it is assumed that such advertisements or mark do not travel beyond the borders of the countries where the plaintiff has the business still it has a right to protect its reputation and goodwill. It is more so where the trade name has been pirated in totality and not by way of having deceptive or confusing similarity. We are living in a world where there is enormous mobility. Well travelled Indians and tourists cannot remain unaware of international commodities. Reputation always travels faster than men Whenever persons travelling abroad for business or pleasure or any other purpose viz study or temporary postings come across an article of a tradename of international reputation they are bound to be confused as to the source and quality if they happen to see that commodity in their country where there is no physical market. Mere likelihood of confusion is sufficient." A similar judgement in an Indonesian case20 has been enforced recently by Delhi High Court in which a mark even though registered in a jurisdiction other where registration was sought to be cancelled on the grounds that it was registered in English language and not in Indonesian language was used to show "bad faith". In the U.K case decision in Daawat Trade Mark [2002] RPC 297 (TMR) in an application for declaration of invalidity it was held that the registration was made with the intention of pre-empting prior foreign user in respect of rice and

similar goods covering the registration. The registered proprietor had no intention to use the mark himself. Partial revocation was ordered. It was held that: 1. To make out a prima facie case of bad faith, the applicant had to show that the registered proprietor had had knowledge of the applicants use of the mark DAAWAT in India prior to the date of application for registration of the same mark in the U.K had reasonable grounds to believe that the applicant intended to enter the U.K market for rice under that Daawat mark, applied to register the mark in order to take unfair advantage of the applicants plans. The evidence showed that the application for registration of the mark Daawat in the U.K in respect of rice and similar goods was in effect, a tool by the registered proprietor in order to improve its prospects of obtaining an agency or distribution agreement with the applicant in connection with the latters p lans to selling it s rice in the United Kingdom. While the registered proprietor believed that the conduct it was engaged in constituted acceptable commercial behaviour and was unfair to the point of bad faith. The question of bad faith had to be judged at the date of the application for registration. To the extent that the application was made in bad faith, the defect could not be cured by establishing at a later date, the same applicant could have made the application in good faith.

2.

3. 4.

A similar provision existing in U.K in the form of Section 3(6), Trade Marks Act, 1994 reads to the same effect. In fact, subsection (1) of section 11 is similar to section 72 of the Trade marks Act, 1994. The principle laid down in this case is important in this respect as it can be used to establish bad faith in terms of non-disclosure of clients trade mark (service mark) during the progress of its own application for registration in India. Lastly, in Gromax Plasticulture v Dow &Low Non-Wovens Ltd, Lindsay J. Considered the meaning of bad faith in S 3(6) of the U.K Trade mark law and stated that: "I shall not attempt to define bad faith in this context . Plainly it includes dishonesty, and as I would hold, includes also some dealings which falls short of the standards of acceptable commercial behaviour as observed by reasonable and experienced men in the particular area being examined. Parliament has wisely not attempted to explain in detail what it is or is not bad faith as a matter best left to be adjudged not by some paraphrase by the courts (which leads to the danger of the courts then construing not the Act but the paraphrase) but by reference to words of the Act and upon a regard to all material surrounding circumstances. " It is also relevant to note that since this is determined both vis-a-vis the applicant and the owner of the wellknown mark , it is essential to establish that the plaintiff (owner of trade mark ) had no previous knowledge of the same . Doctrine Of Delay And Laches And Acquiescence: Curiously, the said principles have been established in relation to trademarks covering goods only. Since service marks came into existence w-e-f from 15th September, 2003 only (when the Trade Marks Act, 1999 came into force), it is a consideration that passing-off actions could be instituted that laches and delay in respect of instituting passing off actions become material. The doctrine of delays and laches applies in order to see the conduct of the plaintiff as was held in the case of Cluett Peabody &Co Inc v Arrow Apparels 1998 PTC (18) 156 This case was however distinguished on facts in Pizza Hut LLC and Pizza Hut Inc versus Pizza Hut India Private Limited as reported in paragraphs 23 and 24 in the same. In view of the above, foreign right holders can marginally enforce its service mark as a well-known mark in light of considerations, provisions and judicial precedents outlined above in respect of passing-off actions. However, the element of knowledge as an exception to the doctrine of laches can serve to provide some respite in terms of enforcement. All in all, it is crucial for such foreign rights holders to act for proactively enforcing the goodwill established internationally by registration of trademarks and institution of timely and appropriate proceedings for enforcement. Footnotes
1. Halsburys Laws of England Volume 48 page 86 at para 142 in relation to protection of well -known trademarks comparing Section 56 of the Trade Marks Act,1994 (U.K)

2. Alain Bernardin & Cie versus Pavilion Properties Limited [1967] R.P.C 581.See also New Star Industrial Co Ltd versus Yap Kwee Kor [1976] FSR 256 3. Reiterated in Anheuser-Busch v. Budejovicky Budvar [1984] F.S.R 413 4. Tan-ichi v Jancar [1990] F.S.R151 , S.C (H.K) 5. Kamal trading co and Ors v Gillette U.K Ltd.1988(12)IPLR 135 at page 143

6. 1996 PTC 476 7. Reaffirmed in 1996 (16) PTC 583 8. William Grant & Sons Vs Mc Dowell & Co Ltd. 1994 (30) DRJ 105; Apple Computer Inc vs. Apple Leasing & Industries 1992 (1) Arb L.R 93 ; Panhard Leavassors case (1901) 18 RPC 405 ,Poiret u. Jules Poiret Ltd. (1920) 37 RPC 177, Sileraton Corporation 1964 RPC 202and Globe Elegance 1974 RPC 603. 9. WWF International vs. Mahavir Spinning Mills 1995 DRJ 412 following the decision in Sears Roebuck & Co vs. Happy House (TV) Mfg Co Ltd. & Ors1992 PTC 59 10. ibid at foot note 9. 11. 1990 (2) Arb .L.R 399 at para 10 12. 1996 PTC 16 Calcutta High court decision 13. 5 CPR (30) 433. The same view was based on the decision in Sheraton Corporation vs Sheraton Motels 1964 R.P.C 202 14. 1998 PTC 18 15. See also Alfred Dunhill vs. Kartar Singh Makkar and Ors 1999 PTC (19) 294 [Delhi High Court] ; Honda Motors Co Ltd versus Charanjit Singh &Ors 2003 (26)PTC 1(Del) and Pizza Hut International LLC and Pizza hut Inc. versus Pizza Hut India Pvt. Ltd. Suit no.1780 of 1999 (Attached herewith) 16. Relied in Alfred Dunhill case 1999 PTC (19) 294 (Del) 17. Mentioned at paragarphs 7 and 8 of Alfred Dunhill Judgement 18. Similarly, held in Caterpillar Inc versus Mehtab Ahmed & Ors 2002(25)PTC 438(Del) 19. Ciba-Geigy vs Surinder Singh 1996 PTC (16) 293 20. Kangaro Industries (Regd) versus Harsono Hardjolukito and Anr. 2004 (29)PTC 175(Jakarta) The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances

Remakes in the Limelight: A Case Comment on Sholay Media vs. Parag Sanghavi
The principles of copyright and trademark law in relation to remakes, spin-offs and sequels have been the subject of a significant amount of case law in the United States. In India, however, these principles lacked specific enunciation until the recent case brought by the makers of the legendary Hindi film Sholay, which was seen as a significant victory for rightsholders in the Indian entertainment industry. By Swathi Sukumar, Anand & Anand

Date: September 2007 The principles of copyright and trademark law in relation to remakes, spin-offs, and sequels have been the subject of a significant amount of case law in the United States. However in India, these principles lacked specific enunciation. The matter of Sholay Media & Entertainment vs. Parag M Sanghavi & Ors., CS (OS) No. 1892 of 2006 raised several of issues in relation to film titles, plots and characterizations before the Delhi High Court.

Background In 1975, Sholay, hailed as India's biggest and best film, was released by Sippy Films. Sholay (singular: Shola, meaning "ember" in Hindi) was screened in movie halls for a continuous period of five years following its release. Three decades since its initial release, the film has retained its cult-status and its reputation as an epic. The characters in the film Sholay became names to reckon with, each remembered for their peculiar characteristics and roles. The oft-quoted dialogues of the film are part of the country's entertainment heritage. Sholay revolves around the story of two petty crooks, Jai and Veeru, commissioned by Thakur Baldev Singh to fight the tyranny of Gabbar Singh, a notorious bandit, or dacoit. Gabbar Singh was the archetypal villain and is considered to be the greatest villain the Indian film industry has ever seen. For years after Sholay, all villains were compared to the touchstone of the formidable and sinister Gabbar Singh The dispute leading to the filing of the suit concerned the proposed remake of Sholay by Ram Gopal Varma, an eminent director in the Indian film industry. Sippy Films Private Limited and Sholay Media and Entertainment Private Limited objected to the remake, titled Ram Gopal Varma ke Sholay (which translates as Ram Gopal Varma's Sholay), claiming to be the rights-holders in the film, its title and copyright. The plaintiffs brought a suit against Varma alleging infringement of copyright, registered trademarks and passing off, a common law tort which occurs when one party misappropriates the reputation of another. On hearing the submissions of the plaintiffs on the first day after the suit and injunction application were filed, the High Court, through Justice Gita Mittal, restrained the defendants from "manufacturing, selling, offering for sale, distributing, advertising including on the internet and in any other manner using the Sholay, Gabbar (or) Gabbar Singh trademarks or any other deceptively similar mark amounting to infringement of the plaintiff's registered trademarks". The defendants were "also restrained from infringing the copyright of the plaintiff's [sic] in the cinematographic film Sholay by substantially reproducing the film Sholay or the constituent parts of the film Sholay, i.e. the script, screen play, sound recordings, lyrics, musical works, art works amounting to infringement of copyright in the works of the plaintiffs". The order of injunction was passed on October 5 2006. Subsequently, the defendants filed an application to vacate the injunction. The injunction application and the application to vacate were heard jointly over thirty hearings by the Delhi High Court. Film titles as trademarks The trademark claim of the plaintiffs was based on the fact that both Sholay and 'Gabbar Singh' are registered trademarks. The issue argued before the High Court concerned whether cinematograph films can be considered goods, and therefore whether titles of films are capable of registration as trademarks. The defendants contended that cinematograph films are not goods under trademark law, and film titles could therefore not be registered as trademarks. In countering the defendants' arguments, the plaintiffs relied on the ruling of the Delhi High Court in a case involving a similar question, in Kanungo Media (P) Ltd vs. RGV Film Factory, 2007 (34) PTC 591 (Del). Interestingly, the Kanungo case and the Sholay case shared a common defendant in Varma. In the Kanungo case, the plaintiff released a regional Bengali film titled Nisshabd. The film was exhibited at various film festivals and also received accolades. The plaintiff learned that Varma's production house, RGV Film Factory, had adopted the identical title for a forthcoming film. Kanungo filed an application for an interim injunction seeking to restrain RGV Film Factory from releasing the film. In a detailed order, Justice AK Sikri observed that in India, the legal position in respect of film titles is the same as in the United States. The court classified film titles into two categories: titles of series of film and titles of single copyrighted works. The justice held that protection is certain in regard to titles of series of films, and such titles enjoy standard trademark protection and may be registered. The court found that in order to extend this protection to the title of a single work, it must be proven that such title has acquired a secondary meaning, but ruled against the plaintiff's requested interim injunction on the ground of delay in bringing the suit. While the Kanungo case considered the issue of protection of titles of single works, the only ruling on the aspect that emerged from the case was that film titles could be subject to trademark protection.

In the Sholay case, the plaintiffs argued that film titles may be registered under class 9 of the Trade Marks Act, 1999, which covers cinematograph films. The defendants argued that the words "cinematograph films" in Class 9 meant raw photographic or cinematographic film, and not a cinematograph film ready to be screened. Therefore, the defendants argued that Class 9 covered trademarks such as 'Kodak' for raw films but would not include cinematographic films. In response to the defendants' arguments on Class 9, the plaintiffs produced various certificates to illustrate that titles of films had been registered as trademarks by the Trade Marks Office, including Toy Story, The Blair Witch Project and Pirates of the Caribbean. The plaintiffs argued that the practice of the Trade Marks Office negated the argument of the defendants in this respect. Further, the plaintiffs used the yardstick set out by the court in Kanungo, and argued that Sholay, as the title of a single literary work, could be protected as a trademark, as they had been able to demonstrate that a secondary meaning had been attached to the mark, given the film's historic success. Therefore, the plaintiffs contended that, even assuming that the titles of single films were not per se registrable, they had been able to show the existence of a secondary meaning. The plaintiffs further argued that the inclusion of the registered trademark 'Sholay' in the title of the defendants production amounts squarely to infringement of the registered trademark. Against this backdrop, the court considered the issue of whether 'Sholay' was indeed a protectable trademark. Passing off The plaintiffs' claim for passing off was perhaps its strongest foothold in the suit. The plaintiffs claimed that the defendants were guilty of passing off their production as originating from or being associated with the plaintiffs' production. The defendants proposed to title their remake "Ram Gopal Varma ke Sholay", which in Hindi means "Ram Gopal Varma's Sholay". The plaintiffs filed several press clippings to illustrate the fact that the defendants continually associated their proposed remake with the plaintiffs' film, which gave the defendants' production extensive publicity. The plaintiffs contended that the defendants' production had been advertised as associated with the plaintiffs' film, which amounts to riding upon the goodwill of the plaintiffs. It was argued that the defendants' representations that their production was a remake amounted to misleading the public that they were licensed by the plaintiffs to use the trademark. The defendants contended that the addition of the prefix "Ram Gopal Varma Ke" was sufficient to distinguish the defendants' production, as Varma is a director of repute in the industry. The plaintiffs argued in reply that the addition of the prefix was insignificant, and that the use of the trademark 'Sholay' in the title of the film would lead to confusion, dilution and tarnishment of the trademark. The plaintiffs also sought support from the fact that the defendants had not provided any explanation for the adoption of the trademark 'Sholay'. Since 'Sholay' is not a descriptive mark, the plaintiffs pointed out that there was no explanation forthcoming from the defendants for the adoption of the trademark as part of their film title. The plaintiffs relied on decisions of the Delhi High Court in Apple Computer Inc. vs. Apple Leasing & Industries, 1993 (18) IPLR 63 and in Alfred Dunhill Limited vs. Kartar Singh Makkar & Ors., 1999 PTC (19) 294 to state that the lack of an explanation is indicative of the fact that the defendants have no right to use the trademark, and that the use of 'Sholay' is motivated by the intention to misappropriate the goodwill of the trademark. Copyright claims The plaintiffs' copyright claims were in the nature of quia timet prayers, a request for an injunction to restrain wrongful acts which are threatened or imminent but have not yet occurred. Common law recognizes that a rights-holder may pre-empt infringement of his rights by filing a quia timet action against a defendant who has demonstrated his intention to infringe upon the plaintiff's rights. The principle has been recognized in relation to trademark law by the Delhi High Court in the case of Mars Inc. vs. K.K. Mukherjee (unreported), dated October 30 2002, J.D. Kapoor, J., Suit No. 1129/ 2003. Based on the representations made in the media that the defendants' production was a remake, the plaintiffs' claim of copyright infringement was in the nature of a quia timet action to restrain the defendants. The plaintiffs claimed copyright in the following works: (i) The cinematograph film (ii) The script

(iii) The screenplay (iv) The musical works (v) The lyrics/literary works (vi) Characters The plaintiffs' case in relation to the cinematograph film was fairly straightforward, as the plaintiffs were the legal heirs of the Sippy Films partnership, the producer of the film. Therefore, under the Copyright Act, 1957, they were the owners of copyright in the cinematograph film. As regards the plaintiffs' copyright claim in relation to the underlying works, such as the lyrics, music and script, the plaintiffs asserted that they are the copyright owners in these works by virtue of the fact that their employees created these works while in employment with the producer of the film. The plaintiffs argued that since they had no way of ascertaining which of their works had been infringed, detailed pleadings on each work infringed by the defendants could follow only once the film had been released. The defendants contended that their work was an independent work, and contradicted the representations made in the media that their film was proposed to be a remake of the plaintiffs' film. The plaintiffs also argued that Varma's production would violate the integrity of the original film, more so because the actor who played the protagonist, Jai, in the original Sholay was slated to play the villain Gabbar Singh in Varma's proposed remake. Characters Indian courts have delivered very few decisions on the granting of copyright protection to characters of a literary work. A significant decision in this area was Raja Pocket Books vs. Radha Pocket Books, 1997 (40) DRJ 791. The plaintiff in the case brought a suit for infringement of copyright in the character Nagraj, a character who appeared in comics, books and novels for children. Nagraj - the Snake-King - was a character who was depicted in a green serpentine skin and red trunks, empowered with super powers of snakes. The defendants sought to release comic books with a central character named Nagesh, who wore a similar outfit and had similar powers. The plaintiff objected to the defendant's adoption of the character Nagesh on the ground that it amounted to copyright infringement of the artistic work of Nagraj. In the Sholay case, the plaintiffs argued that the characters in their film, Jai, Veeru, Basanti, Thakur, Soorma Bhopali and Gabbar Singh were capable of copyright protection, as they are sufficiently delineated in the script and the screenplay. The plaintiffs relied on the case of Anderson vs. Stallone, 11 USPQ 2d 1161, which revolved around the character Rocky Balboa, the protagonist of the Rocky series of movies. The plaintiff in that case filed a suit to restrain infringement of copyright in the script of the film Rocky IV, which he had alleged that he authored. While finding against the plaintiff, the court held that the Rocky characters are one of the most highly delineated group of characters in modern American cinema and were protected from being used in other works. The plaintiffs contended, therefore, that the characters of Sholay were so well delineated by their individual traits and habits that they are protected from misappropriation by a third party. The plaintiffs were also the proprietors of the registered trademark 'Gabbar Singh' in respect of certain classes of goods such as jewelry and coffee intended for use in merchandising the character. The plaintiffs relied on the registrations to make an argument against the use of the trademark as part of the defendants' production. The defendants refuted the claim of trademark infringement on the ground that the plaintiffs had not effectively merchandised the character and had no goodwill in those goods which could give rise to a claim against the defendants. The outcome On July 16 2007, on the eve of conclusion of arguments of both parties, Varma made a formal statement through counsel that he is willing to give up the trademark 'Sholay'. In light of this fact, the plaintiffs' injunction was made permanent on Varma's assurance that his production would be renamed Ram Gopal Varma Ke Aag. Varma also gave his assurance that no character in the movie would bear a name which is the same or similar to the names of or the characters in the movie Sholay in respect of which the plaintiffs have claimed rights. Varma also provided assurances that the new production would be an independent work by itself and the script, screenplay, dialogues and musical score of the new film would also be original, distinct and different from the plaintiffs' film. On these assurances, the defendants were permitted to release their production. The injunction application and the application to vacate the injunction were disposed of.

The copyright claim however, continues to subsist, and the plaintiffs are at liberty to press the claim if any part of the production is in violation of the assurances given to the court by Varma. The Sholay case is seen as a major victory for rights-holders in the Indian entertainment industry, which has not been famous for its respect for intellectual property laws. About the author Swathi Sukumar is an associate in Anand and Anand's litigation department. She graduated in 2005 with a bachelor's of arts and a bachelor's of law (honours) from NALSAR University of Law, Hyderabad, India. Her area of practice is general intellectual property litigation with a focus on patent and trade secret litigation. She recently co-authored the India chapter on patent litigation, in the Patent Litigation Reference Series, published by European Lawyer Ltd.

http://www.asialaw.com/Article/1988976/Remakes-in-the-Limelight-A-Case-Comment-on-SholayMedia-vs-Parag-Sanghavi.html?Print=true&Single=true http://www.mondaq.com/india/x/33695/Trademark/Legal+Recognition+Enforcement+of+Well+Kno wn+Marks+in+India+A+Service+Marks+Perspective

(iii) Alfred Dunhill Limited Vs Kartar Singh Makkar & Others 1999 PTC (19) 294 Held : A trader needs protection of his right of prior user of a trade mark/trade name as the benefit of the name, fame, reputation and image and goodwill earned by him cannot be taken advantage by another trader by passing off his goods as those of the prior user of the trademark or trade name.
http://www.ipab.tn.nic.in/005-2013.htm

16. Alfred Dunhill Limited Vs Kartar Singh Makkar & Others 1999 PTC(19) 294 It was held that trader who has built name, fame, reputation and goodwill needs to be protected from other trader passing off his goods.
http://www.ipab.tn.nic.in/044-2013.htm

India: Expired Trademark Registration Can Be Renewed: A Case Summary On Union Of India V. Malhotra Book Depot
Last Updated: 25 April 2013 Article by Singh & Associates Litigation Team Singh & Associates

Background
Trademark Law in India is passing through a remarkable and progressive phase. Recently Samsung has raised the issue of International Exhaustion of a trademark under Indian trademark law. Similarly, trademark registrations in India have also increased as India is becoming a preferred destination for commercial activities world over. Trademark registration in India is regulated by the Trademarks Act 1999 of India. A registered trademark is valid for a period of 10 years which can be renewed for another 10 years at a time. There may be cases where a trademark holder fails to renew its trademark on time. Renewal of an expired trademark is only option left in such cases. In India even if the mark has been expired, one can apply for its reregistration. If someone else applies for registration for expired trademark as per the prescribed procedure, owner of expired trademark can file objections at the registry, tribunal or appropriate forum. In the recently decided matter of Union of India v. Malhotra Book Depot1 by the Delhi High Court on the restoration of the trademark of Malhotra Book Depot after 26 (twenty six) years of expiry; it was directed by the Hon'ble Court that the mark of the Respondents should be renewed. The brief of the case is as below:

Union of India & Ors. v. Malhotra Book Depot

2

Facts of the case

The predecessors of the respondent, (which is stated to be a partnership firm of Mr. Satish Bala Malhotra, Ms. Monica Malhotra Khandari and Ms. Sonica Malhotra Kandhari) namely Shri Ashok Kumar Malhotra and late Shri Balbir Singh trading as M/s Malhotra Book Depot had applied for and were granted registration of the trademark 'MBD' in Class 16 for the goods "publications (printed) and books" vide Trademark Registration dated 23rd November, 1970. The said trademark was thereafter duly renewed from 23rd November 1977 to 23rd November, 1984. On the 1st April, 1992 the constitution of M/s Malhotra Book Depot was changed and a fresh partnership deed was executed between the new partners i.e. Shri Ashok Kumar Malhotra and Ms. Satish Bala Malhotra. On the demise of Shri Ashok Kumar Malhotra the constitution of the respondent M/s Malhotra Book Depot was again changed and a fresh partnership deed was executed between Ms. Satish Bala Malhotra, Ms. Monika Malhotra Kandhari and Ms. Sonica Malhotra Kandhari on 30th December, 2009. That in April, 2010 the respondent filed a suit for permanent injunction restraining infringement of the Trademark MBD and in connection with the said suit applied for certification for use in Legal Proceedings. However the application was returned by the Appellant No. 3 Registrar of Trademark as no records/details of the said trademark could be traced in the database of the Registrar in the consequent investigation by the respondent it was realized that the trademark had not been renewed after 23rd November, 1984.

Contention of the Registrar of Trademark (Appellants)

i. That the renewal of the mark had become due on 23rd November, 1984 i.e. 26 years prior to the filing of the writ petition and the writ petition suffered from delay and latches. ii. That the factum of removal of the Trademark was notified in the Trademark Journal No. 997 dated 16th November, 1990 for non-payment of the renewal fee. iii. That such removal could not be without following the due process as per the provisions of law and the respondent was taking advantage of the facts that 26 years old records of dispatch of Notice in form O-3 would not be available with the Registrar. iv. On receipt of complaint regarding non-receipt of Registration Certificate and non-issuance of the Form O-3 Notices, Public Notices dated 24th September, 2010 and 31st November, 2010 were issued advising the public at large to file the petition in the prescribed manner. v. That the Respondent was also advised to file a petition in this regards vide letter from the Trademark Registry issued on 24th January, 2011. The Counsel for the Appellant argued that removal of a trademark is an administrative act akin to removal of deadwood and any deficiency in such removal does not give any right for restoration of the trademark beyond the time prescribed thereof. Further it was said that the issuance of Notice in Form O-3 is not mandatory and cannot extend the duration for indefinite period.

Reply of the Respondent

The Respondent did not receive any Notice in Form O-3 and sue to which the removal of the registered trademark without notification cannot be done by the Resgitry. If removal of the mark is wrong, its restoration cannot be denied; while providing for removal of the mark on nonpayment of renewal fees at the expiry of the last registration uses the word 'may' and not 'shall', that it is for this reason only that the Registrar, inspite of the validity of the mark having expired in the year 1984 did not remove it till

the year 1990, that if the mark not removed, its renewal can be applied for at any time. If the removal of the mark is wrongful, the limitation prescribed in section 25(4) of one year for applying for renewal thereof does not apply. On a plain reading of section 25, the inescapable conclusion is that though the period of registration was prescribed as seven years, renewable from time to time on application in the prescribed manner within the prescribed time but the removal of the mark from the register has been made subject to sending of a notice in the prescribed manner calling upon the registered proprietor to review the mark and permitted only upon the failure of the registered proprietor to do so and not merely on the failure of the registered proprietor to apply within the prescribed time. Rules for renewal and expiration of registration has been prescribed, according to which renewal of registration can be anytime within six months before expiration of the last registration. However the non-renewal has not been made automatic. If the renewal application is not made two months prior to expiration, the registrar is required to notify the same to the registered proprietor. The removal of the mark from the register can be done only after such notification.

The Judgment
The Division Bench in this matter was of the view that:

A mark cannot be removed without following the due process as per the provisions of law and had been done without following the due process and had made presumptive statements and also in the Respondent's case the Form O-3 had not been issued as provided for in Rule 67. Under section 25 of the Trade and Merchandise Mark Act, 1958, the application for renewal of the registration could be made upon receipt of the Notice in the Form O-3. The Registrar could remove the Trademark from the Register and advertise the factum of removal in the Journal only after a Notice in Form O-3 has been issued. That the said removal of registered trademark cannot be done without prior notice to the registered proprietor in the prescribed form. Mere expiration of the registration by lapse of time and failure of the registered proprietor of the trademark to get the same renewed, by itself, does not lead to the conclusion that the same can be removed from the Register by the Registrar of Trademark without complying with the mandatory procedure prescribed in Section 25(3) of the Act read with Rule 67 of the Rules. Such removal without due procedure will itself be laconic and illegal. That the plea for the Registrar that the application for restoration and renewal of the mark was beyond the time prescribed in Section 25(4) and Rule 69 could not be accepted because the removal of the mark from the register was not in terms of Section 25(3) read with Rule 67 & 68. Since the mandatory Notice in Form O-3 had not been given prior to the removal of the mark, the application seeking its restoration and renewal could not be said to be barred by time.

It was also held by the Supreme Court in Sarla Goel v. Kishan Chand,3 emphasized importance of following the statutory procedure step by step and held an earlier step to be a precondition for the next step and it being impermissible to straightway jump to the last step. It was further held that the last step can come only after step has been taken. When the act itself has prescribed the procedure for removal, it is not justified in holding the said procedure to be not mandatory or not binding on the Registrar to uphold the removal even if such procedure is not followed. 4 It is also a well settled principal of law, which states that rules framed under a statute cannot override the statute. Similarly the Constitutional Principles applicable to tangible property would apply to intangible intellectual property also and which bar a person from being deprived of his property save in the manner prescribed by law. Neither the Act nor the rules prescribe any limitation for applying for restoration and renewal in a situation where the removal of the mark from the register is without issuing the notice in Form O-3. The Registrar would be entitled to take into consideration the relevant factors such as whether the same or a similar mark has in the interregnum being registered by any other person etc. Once it is held that for the Registrar to invoke the bar of limitation of one year for applying for renewal, the notice under Form O-3 is mandatory, the Registrar cannot be permitted to invoke the presumption of the removal having been done in the manner prescribed in law. Similarly, the period of one year in Section 25(4) is also be read as commencing from the date of removal and not from the date of expiration of the last registration, where removal is not immediately after the expiration of the last registration. Else there would be no logic/ sense in Section 26 providing for deeming the mark on the register for the purposes of any application for registered proprietor of the same or similar mark. The registered proprietor has the right to seek restoration and renewal during the period of one year. The intention of the legislature was to vest the right of renewal only for period of one year from the date of expiration of last registration; the operations of Section 26 would also have been for one year from the date of expiration of the last registration of the trademark and not one year from the date of removal. It was also held that it would be redundant if the right of the registered proprietor to restoration and renewal of the mark extinguish on an expiry of one year from the expiration of the last registration and irrespective of whether the trademark is actually removed from the register immediately on such expiration or after considerable time. In all the removal without following the mandatory procedure prescribed thereof is bad in law. It was finally directed that the Registrar should restore/renew the mark after satisfying that the Respondent is the registered proprietor/successor of the registered proprietor of the trademark which has expired and that in the interregnum same/similar marks are not registered.

Footnotes
1 MIPR 2013 (1) 246

2 Ibid.

3 (2009) 7 SCC 658earlier

4 Thakral Mechanical Works v. P.M Diesels, (2009) 2 SCC 786

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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