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Article Published in the Express Magazine Dated
December 16,
2001
General Attorney : Rajiv K. Luthra
I intend to enter into a license agreement with
another company for using my trademark. Would that
expose me to any form of liability? How do you
suggest that I protect myself from the same?
Sanjay Gupta, Hyderabad
THE function of a trademark is to give an
indication to the consumer a clear picture of the
manufacture or quality of the goods and of the
trade source from which the goods come. Hence, a
trademark identifies the product, its origin and
guarantees its unchanged quality and advertises
the product. There are no specific liabilities for
trademark holders provided in the Trade and
Merchandise Marks Act, 1958. But depending on the
business sector, certain acts might attach
liabilities to the trademark holder. Under the
Consumer Protection Act, 1986 (“Act”) a complaint
of a consumer in relation to any defects in the
product may be filed against the manufacturer of
that product. Manufacturer as defined in the Act
means, amongst others, “a person who puts or
causes to be put his own mark on any goods made or
manufactured by any other manufacturer and claims
such goods to be goods made or manufactured by
himself.” On a complaint of the consumer the
respective Consumer Forum may pass an order to the
opposite party, for instance, to remove the
defect, to replace the goods, to return to the
complainant the price and/or charges, to pay
compensation, to discontinue unfair trade
practice, not to offer hazardous goods for sale,
to withdraw the hazardous goods or to provide for
adequate costs to parties. Further, under the
principles of product liability the holder of a
trademark, who is identified as manufacturer of a
product by his trademark, may be held liable for
paying compensation to others under certain
circumstances. Product liability is the legal
liability imposed upon a manufacturer, seller,
importer, exporter or supplier of any product to
compensate buyers, users or bystanders for any
damage, physical injury or economic loss caused to
the purchaser or user of this product or to any
third party, due to some defect in the product.
Although the ultimate responsibility for injury or
damage in a product liability case most frequently
rests with the actual manufacturer, liability may
also be imposed upon a party wholly outside the
manufacturing and distributing process. Certain
other liabilities may also accrue under certain
other acts depending upon the nature of products
that you deal with. To protect yourself from
liabilities you may consider incorporating a
comprehensive indemnity clause in your license
agreement.
Are we, as citizen of this country not allowed
under law to criticize a decision of the court?
Jogi Chauhan, New Delhi
Freedom of speech and expression is the "life
blood of democracy", and is guaranteed by the
Constitution of India, but this freedom is subject
to certain qualifications. These have been
enumerated in the limitation clause contained in
Article 19 (2) of the Indian Constitution, which
enables the Legislature to impose reasonable
restrictions on certain grounds. According to an
old saying “you can criticize the judgment, not
the judge” these restrictions include contempt of
court. Courts are considered the bulwark of
liberty and the rights of the people. If this is
the position of the judiciary, which the
Constitution has given it, it is the duty of any
right thinking citizen not to do anything
consciously or unconsciously, which will undermine
the special position of the judiciary. The Hon'ble
Supreme Court, while discussing a case on the
issue has upheld that freedom of speech and
expression does not include freedom to distort
orders of the court. The right of criticizing in
good faith in private or public, a judgement of
the court cannot be exercised, with malice or by
attempting to impair the administration of
justice. Courts are not unduly sensitive to fair
comments or even outspoken comments being made
regarding the judgments and orders made
objectively, fairly and without any malice, but no
one can be permitted to distort orders of the
courts, which have a tendency to scandalize the
court or bring it to ridicule, in the larger
interest of protecting administration of justice.
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