Weekly Legal Updates (1 October to 7 October 2023)

Weekly Legal Updates main objective is to update the legal knowledge of law students, lawyers, academicians and other professionals. If we do not update our legal knowledge regularly, our knowledge become redundant.

Delhi HC halts pizza outlet from using ‘Dominick Pizza’ due to trademark infringement by Domino’s

The Delhi High Court has issued a permanent injunction, barring a Ghaziabad-based pizza outlet from utilising the trademark ‘Dominick Pizza’, deeming it an infringement on the trademark of multinational pizza giant, Domino’s Pizza.

Justice C. Hari Shankar, presiding over the case, stressed on the phonetic similarity between ‘Domino’s Pizza’ and ‘Dominick’s Pizza,’ characterising them as deceptively similar. 

The case stemmed from a trademark infringement lawsuit filed by Domino’s against Dominick Pizza for employing an identical name and employing registered trademarks like ‘Cheese Burst’ and ‘Pasta Italiano.’

The judge pointed out that confusion was highly likely to arise when a customer of average intelligence with an imperfect memory visits a Domino’s outlet and subsequently frequents a Dominick’s Pizza outlet.

The court further stressed the responsibility of courts to prevent such imitative attempts in trademarks, particularly in the context of consumable items or eateries.

“When the marks in question pertain to food items or eateries where food items are dispensed and served, a somewhat higher degree of care and caution is expected to be observed,” the court said.

In August 2022, the court had issued an interim order against Dominick Pizza. In the final order, Justice Shankar expressed disapproval of operating an eatery with a mark deceptively similar to a well-known mark.

“The intent to capitalise on the reputation of a known and established brand, by using a mark which is deceptively similar to the mark used by the brand, can, in a given case, give rise to a legitimate apprehension of quality compromise by the imitator,” the court said.

Moreover, the court clarified that the determination of whether an infringing mark may cause confusion is primarily a matter of subjective discretion for the court and not a matter to be decided based on customer evidence.

The court found that Dominick Pizza had unmistakably infringed Domino’s Pizza’s trademark. Hence, it restrained Dominick Pizza from using the name ‘Dominick Pizza’ as well as the marks ‘Cheese Burst’ and ‘Pasta Italiano.’

Dominick Pizza was also directed to withdraw its application from the Trade Marks Registry for the registration of the contested mark and transfer its internet domain names to Domino’s.

(Courtesy:- The News Minute, 2 October 2023)

Legal petition to recognise ‘Ram Sethu’ as national monument dismissed by Supreme Court

The Supreme Court on Tuesday refused to entertain a plea seeking directions to declare the ‘Ram Sethu’ as a national monument and construction of a wall at the site, saying these are administrative matters for the government.

‘Ram Sethu’, also known as Adam’s bridge, is a chain of limestone shoals between Pamban Island off the south-eastern coast of Tamil Nadu, and Mannar Island off the north-western coast of Sri Lanka.

The plea came up for hearing before a bench of Justices Sanjay Kishan Kaul and Sudhanshu Dhulia.

The petition was filed by an organisation ‘Hindu Personal Law Board’ through its president Ashok Pandey.

Pandey, who is also an advocate, informed the bench about a plea filed by BJP leader Subramanian Swamy which is pending in the apex court.

In his plea, Swamy has sought a direction to the Centre to declare the ‘Ram Sethu’ as a national heritage monument.

Pandey urged the bench that the plea filed by the board be tagged with Swamy’s pending petition.

“If it is pending, it is pending. What do you want?” the bench asked.

When he referred to his prayer for construction of wall at the site, the bench observed, “How can wall be constructed on two sides?” “Is this for the court to do? These are administrative matters for the government. Why should we get into this?” the apex court said.

The bench refused to accede to the petitioner’s request that his plea be tagged with the pending petition.

“We are not inclined to exercise jurisdiction under Article 32 of the Constitution of India to give any nature of direction as the petitioner seeks,” the bench said, while refusing to entertain the plea.

Article 32 of the Constitution deals with remedies for enforcement of rights and 32 (1) says that right to move the apex court by appropriate proceedings for enforcement of rights conferred by this part is guaranteed.

The plea filed by the board sought the top court’s direction to authorities concerned to construct a wall at the ‘Ram Sethu’ site.

It also sought a direction for declaring ‘Ram Sethu’ as a national monument within the provisions of the Ancient Monuments and Archaeological Sites and Remains Act, 1958.

(Courtesy:- The Telegraph Online, 3 October 2023)

Supreme Court asks Centre to survey SYL canal land in Punjab to know extent of construction

The Supreme Court on Wednesday asked the Centre to conduct a survey of the land meant for construction of the Sutlej-Yamuna Link (SYL) canal in Punjab to know how much work has been done and asked the Punjab Government to extend co-operation in the survey.

“We are concerned with the execution of a decree for construction of the canal in the Punjab portion…We would like the UOI to survey the portion of the land in Punjab allocated for the canal… An estimate has to be made about the extent of construction made by Punjab,” a Bench led by Justice Sanjay Kishan Kaul told Additional Solicitor General Aishwarya Bhati.

Despite vehement opposition from senior counsel Shaym Divan, representing the State of Haryana, the Bench asked Bhati to furnish “certain information” with regard to availability of water for the SYL canal in two months.

The top court also directed the Centre, in the meantime, to look into the process of mediation to find an amicable solution to the vexed problem that has defied any solution for decades and posted the matter for further hearing in January 2024.

While noting that the matter had political ramifications, the Bench made it clear that “the decree (in favour of Haryana) stands” and “something will have to be done” as Haryana has already constructed its part of the canal.

As Divan pointed out that there was an order of the Supreme Court for execution of the decree, the Bench said the canal has to be constructed and the decree has to be executed even as the Punjab Government counsel talked about decreased availability of water and other problems in execution of the two-decade-old decree.

After Punjab’s refusal to construct its part of the SYL canal, the Supreme Court had on March 23 asked the Centre to play a more “pro-active role instead of being a mute spectator” to resolve the issue.

The Centre had earlier told the court that talks between the two states failed as Punjab has refused to construct its part of the canal and in 2016, Punjab de-notified the land acquired for construction of SYL and returned it to farmers. “Therefore, construction of SYL now may raise law and order problems,” the Centre had said.

At the root of the problem is the 1981 water-sharing agreement after Haryana was carved out of Punjab in 1966. For effective allocation of water, the SYL canal was to be constructed and the two states were required to construct their portions within their territories. While Haryana constructed its portion of the canal, after the initial phase, Punjab stopped the work, leading to multiple cases.

In 2002, the top court decreed Haryana’s suit and ordered Punjab to honour its commitments on water-sharing.

However, the Punjab Assembly passed the Punjab Termination of Agreement Act in 2004 to terminate the 1981 agreement and all other pacts on sharing waters of the Ravi and the Beas.

Punjab filed an original suit that was rejected in 2004 by the Supreme Court which asked the Centre to take over the remaining infrastructure work of the SYL canal project.

In November 2016, the top court declared the law passed by the Punjab Assembly in 2004 terminating the SYL canal water-sharing agreement with neighbouring states unconstitutional. In early 2017, Punjab returned land—on which the canal was to be constructed—to the landowners.

According to a report filed by the Centre earlier this year, the October 14, 2022, and January 4, 2023, meetings between the chief ministers of Punjab and Haryana concluded without any agreement.

The Centre’s report stated that “Punjab also highlighted that Punjab Termination of Agreements Act (PTAA)-2004 is still in force and as per the Act no additional water, beyond 1.62 MAF, out of Haryana’s share of 3.5 MAF, which is being given to Haryana since the date of enforcement of the Act, shall be continued.”

Maintaining that a negotiated settlement of the Sutlej-Yamuna Link (SYL) canal dispute can’t be reached, the Haryana Government had on January 19 requested the Supreme Court to ask the Punjab Government implement its order to complete the construction of the canal.

Haryana contended that it cannot be made to wait long for construction of the canal. Any further delay in execution of the top court’s 2002 decree will erode people’s faith in the judicial system. But Punjab argued the decree was premised on the fact that there was enough water in the river and now that there was not much water flow, it was impossible to execute the decree.

(Courtesy:- The Tribune, 4 October 2023)

7-judge bench of Supreme Court to hear a case for first time in 6 years

For the first time in six years, a seven-judge bench of the Supreme Court will hear a case on Wednesday. The bench will reconsider the Supreme Court’s 1998 verdict granting MPs and MLAs immunity from prosecution for taking a bribe to make a speech or vote in Parliament and state legislatures.

It will also be the first time in the history of the Supreme Court that a seven-judge bench hearing will be live-streamed.

The bench comprises Chief Justice of India DY Chandrachud, AS Bopanna, MM Sundresh, PS Narasimha, JB Pardiwala, Sanjay Kumar, and Manoj Mishra. Before this, in 2017, a seven-judge sitting was held in a case related to the then Calcutta High Court judge CS Karnan.

The court had sentenced him to six months in jail for contempt of court. The former judge had made allegations of corruption and caste-based discrimination against Supreme Court judges and passed a controversial order convicting the chief justice.

A five-judge Constitution Bench had, in 1998, granted immunity to 10 MPs belonging to Jharkhand Mukti Morcha (JMM) and Janta Dal from prosecution for taking bribes to vote in favour of the PV Narasimha Rao’s Government in a no-confidence motion.

However, in 2007, another bench of the Supreme Court ruled in Raja Rampal’s case that those who took money to ask questions in Parliament were liable to be expelled from the House permanently. To bring clarity, a five-judge constitution bench headed by CJI Chandrachud referred the case to a seven-judge bench.

The case pertains to Sita Soren, who was an MLA in the Jharkhand Assembly and was being prosecuted by the CBI for allegedly taking bribes for voting in the 2012 Rajya Sabha Poll. She had been accused of receiving bribes from a Rajya Sabha candidate for casting her vote in his favour, but instead she voted for another candidate.

Her father-in-law and JMM leader Shibu Soren was saved by the 1998 Constitution Bench verdict wherein the top court ruled that MPs who took money and voted in favour of Rao’s government were immune from prosecution. However, it ruled that those who gave the bribe to JMM MPs were not immune from prosecution.

Petitioner Sita Soren has claimed protection under Article 194(2), which is identical to Article 105(2) that states, “No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.”

(Courtesy:- India Today, 4 October 2023)

Gyanvapi mosque body files SLP in supreme court against Allahabad high court order transferring its plea

The Gyanvapi mosque management has filed a special leave petition (SLP) in the Supreme Court against the Allahabad High Court’s August order transferring to another bench its plea challenging the maintainability of the suit seeking restoration of a temple at the mosque site in Varanasi. On
Wednesday, the high court was informed about the SLP by the Anjuman Intezamia Committee, after which it adjourned till October 30 the hearing on the maintainability issue.

In August, Allahabad High Court Chief Justice Pritinker Diwaker had ordered the transfer of the matter from a bench of Justice Prakash Padia, which had been hearing the matter since 2021.
Chief Justice Diwaker had said the decision to transfer the matter to his court was taken on the administrative side in the “interest of judicial propriety, judicial discipline, and transparency in the listing of cases”.

The mosque management also challenged a Varanasi court order for a comprehensive survey by the
Archaeological Survey of India of the mosque premises located next to Kashi Vishwanath temple in Varanasi.After the counsel of the mosque management informed about the SLP, Chief Justice Diwaker adjourned the hearing till October 30.

(Courtesy:- The Times of India, 4 October 2023)

Non-cooperation to ED summons doesn’t make one liable to be arrested: Supreme Court

The Supreme Court on Wednesday ruled that mere non-cooperation in response to Enforcement Directorate (ED) summons would not make one liable to be arrested. “Accused failing to respond to ED’s questions would also not be sufficient ground for agency to arrest the person,” the top court

The Supreme Court was refering to non-conformity of legal provisions while arresting two directors of real estate firm M3M, Pankaj Bansal and Basant Bansal. “A statutory authority is bound by the procedure laid down in the statute and must act within the four corners thereof,” it said.
The ED, mantled with far-reaching powers under the stringent Act of 2002, is not expected to be vindictive in its conduct and must be seen to be acting with utmost probity and with the highest degree of dispassion and fairness.

The Supreme Court had on Tuesday ordered the release of Pankaj Bansal and Basant Bansal saying the ED was wrong in not sharing with them the grounds for their arrest in a money laundering case.
“In the case on hand, the facts demonstrate that the ED failed to discharge its functions and exercise its powers as per these parameters,” the apex court added.

(Courtesy:- The Times of India, 4 October 2023)

Supreme Court summons Jharkhand chief secretary for ‘sleeping over’ case

The Supreme Court on Tuesday summoned the Jharkhand chief secretary and directed him to remain personally present in court for not appointing a counsel in a case related to payment of back wages to employees dating back 20 years.

A bench of Justices Vikram Nath and Rajesh Bindal passed the order after noting that notice was issued to Centre, Bihar and Jharkhand governments last year but the state remained unrepresented as no lawyer appeared for it. “In such a sensitive matter, the state of Jharkhand has been sleeping over it… Let the chief secretary remain present before this court on October 9, for the reason that despite due service of notice no one has put in appearance on behalf of the state,” it said.

(Courtesy:- The Times of India, 5 October 2023)

Enforcement Directorate cannot make arbitrary arrests under PMLA, says Supreme Court

The Supreme Court has ruled that the Enforcement Directorate cannot act out of vindictiveness and make arbitrary arrests under the Prevention of Money Laundering Act (PMLA), laying down that the central agency would have to furnish written grounds of arrest to the accused.

The court said such safeguards were both a fundamental and a statutory right of the accused. It slammed the central agency for its “clandestine conduct” over the arrest of a father and son from Haryana in a money-laundering case.

The Narendra Modi government has often been accused of using the ED and other central investigative agencies to settle scores with Opposition leaders and critics.

A bench of Justices A.S. Bopanna and Sanjay Kumar on Tuesday also held that trial courts cannot routinely remand people booked under the PMLA to custody without properly applying their mind and by relying solely on the ECIR (equivalent to FIR) and other materials placed before them by the ED.

The apex court referred to Rule 6 of the Prevention of Money Laundering Rules, 2005, that deals with Forms of Records. The rule provides that the arresting officer, while exercising powers under Section 19(1) of the Act, shall sign the arrest order.

“On the above analysis, to give true meaning and purpose to the constitutional and the statutory mandate of Section 19(1) of the Act of 2002 (PMLA) of informing the arrested person of the grounds of arrest, we hold that it would be necessary, henceforth, that a copy of such written grounds of arrest is furnished to the arrested person as a matter of course and without exception,” the Supreme Court said.

The court noted that the chronology of events in the case of Pankaj Bansal and his father Basant Bansal, both realtors, “speaks volumes and reflects rather poorly, if not negatively, on the ED’s style of functioning”.

“Being a premier investigating agency, charged with the onerous responsibility of curbing the debilitating economic offence of money-laundering in our country, every action of the ED in the course of such exercise is expected to be transparent, above board and conforming to pristine standards of fair play in action.

“The ED, mantled with far-reaching powers under the stringent Act of 2002, is not expected to be vindictive in its conduct and must be seen to be acting with utmost probity and with the highest degree of dispassion and fairness. In the case on hand, the facts demonstrate that the ED failed to discharge its functions and exercise its powers as per these parameters,” the court said.

The court noted that the failure of the appellants to respond to the questions put to them by the ED was “not sufficient in itself for the investigating officer to opine that they were liable to be arrested under Section 19, as that provision specifically requires him to find reason to believe that they were guilty of an offence” under the PMLA.

“Mere non-cooperation of a witness in response to the summons issued under Section 50 of the Act of 2002 would not be enough to render him/ her liable to be arrested under Section 19,” Justice Kumar, who authored the judgment, observed.

The bench set aside the arrest and detention of the Bansals, who had challenged the ED action as their names were not included in the first FIR.

The trial court and Punjab and Haryana High Court had both affirmed their arrests and remand based on three orders passed by a Panchkula court.

The Supreme Court pointed out that the ED had claimed Pankaj Bansal had been “evasive” in providing relevant information, but did not specify how. “In any event, it is not open to the ED to expect an admission of guilt from the person summoned for interrogation and assert that anything short of such admission would be an ‘evasive reply’,” the court said.

The apex court noted that Article 22(1) of the Constitution provides that no person who is arrested shall be detained in custody without being informed as soon as possible about the grounds of arrest.

“This being the fundamental right guaranteed to the arrested person, the mode of conveying information of the grounds of arrest must necessarily be meaningful so as to serve the intended purpose,” Justice Kumar said.

The bench noted that Section 45 of the PMLA lays down two bail conditions — first, the court must be satisfied, after giving an opportunity to the public prosecutor to oppose the application for release, that there are reasonable grounds to believe that the arrested person is not guilty of the offence; and second, that he is not likely to commit any offence while on bail.

“To meet this requirement, it would be essential for the arrested person to be aware of the grounds on which the authorised officer arrested him/ her under Section 19 and the basis for the officer’s ‘reason to believe’ that he/ she is guilty of an offence punishable under the Act of 2002.

“It is only if the arrested person has knowledge of these facts that he/ she would be in a position to plead and prove before the special court that there are grounds to believe that he/ she is not guilty of such offence, so as to avail the relief of bail…,” the top court said.

It added: “We may also note that the language of Section 19 of the Act of 2002 puts it beyond doubt that the authorised officer has to record in writing the reasons for forming the belief that the person proposed to be arrested is guilty of an offence punishable under the Act of 2002. Section 19(2) requires the authorised officer to forward a copy of the arrest order along with the material in his possession, referred to in Section 19(1), to the adjudicating authority in a sealed envelope.”

The court frowned on the “clandestine conduct of the ED”. It mentioned that the agency proceeded against the appellants by recording the second ECIR immediately after the father-son had secured interim protection in relation to the first ECIR. The court said this “reeks of arbitrary exercise of power”.

(Courtesy:- The Telegraph Online, 5 October 2023)

Supreme Court seeks government strategy on muscular dystrophy

The Supreme Court on Friday sought to know from the Union government its plans about putting in place a national scheme for treatment of patients of advanced stage muscular dystrophy after entertaining a petition by parents of 251 children afflicted with this near fatal rare disease.

Appearing for the parents, advocate Utsav Bains informed a bench of CJI D Y Chandrachud and Justices J B Pardiwala that grade-I muscular dystrophy (MD) afflicted children, who show signs of it in tender age, is possible with one-time treatment that costs Rs 15 lakh, a sum provided by the government.

However, it is the late detection of the rare disease, due to absence of information and wide availability of medical technology, that creates both emotional and financial issues for the parents. Bains said that the grade-II and III muscular dystrophy treatment cost ranges from Rs 2-3 crore annually as medicines are imported from US and European countries with little chance of complete recovery.

The CJI-led bench said as medicines for this are not developed in India at present, there may be a need for framing a national policy. It sought the Centre’s response to the PIL within four weeks and requested additional solicitor general Aishwrya Bhati to assist the court.

“All forms of MD grow worse over time as muscles degenerate and weaken. Many with MD lose the ability to walk. …There are about five lakh such patients in India,” the petitioners said.

Invoking the right to life, which encompasses right to health, the petitioners said there is an urgent need for framing of a national programme for children with muscular dystrophy and issuing each patient a unique ID to enable them get free treatment.

(Courtesy:- The Times of India, 7 October 2023)

Key Words:- #pizza outlet #Dominick Pizza #trademark infringement #Domino #Ram Sethu #SYL canal land  #Gyanvapi mosque #ED summons #sleeping over case  #Enforcement Directorate #arbitrary arrests #PMLA #government strategy on muscular dystrophy

*Disclaimer: – Always check with the original copy of judgment from the Court website.

Legal News in this Weekly Legal Update are compiled by Team www.deepakmiglani.com

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