BLA Cheat Sheet from PPTs

Saransh Kejriwal
“It’s not what you know, it’s what you can prove in court” – Law Abiding Citizen
 Plaintiff – The party that raises the issue in court. The folks who press
charges.
 Defendant – The party against whom the charges are raised.
IPR Law
TM
 Categories – TMs, ©, Patent, Geographical Indication (GI) (something belongs
to a country), Industrial Design.
 Trademark is a more valuable asset than physical factories etc.
 Criteria for protection – Patent for Novelty, Copyright for originality, “Design”
for Novelty & Originality, TM for a
 IP Value chain has 4 broad steps to it:
o Innovate – Invent/Modify/Acquire something worth calling an IP, or
collaborate to build one
o Protect – Register your IP, Enforce that its access/usage is limited to
you
o Manage – Manage the IP Policy, Valuation, Observation and Staff
education on using it correctly
o Utilization – How to use the IP for yourself for licensing/merchandising
 TM Definition – it should be graphically representable, distinguishable from
others’, may include shapes, packaging, or combination of colors (packaging of a
product). can include device, brand, heading/label/ticket, name, sign, word,
alphanums, shapes, colors
 TM can be registered or unregistered. Registration is advisable but not
mandated.
 If 2/more people try and register for the same/similar TM, priority in adoption
takes precedence over FCFS – who has been using this TM first, not who came
first to register.
 The proprietor (owner) of a registered trademark cannot take action against
someone using a similar trademark, if the latter has been using it from an earlier
date than the former.
 How to prove longer use? With sales figures/receipts (maybe)
 Types of TM creation – Invented Word (Kodak, KPMG). Invented word has an
“inherent distinctiveness”. If you use a family name as a TM (Tata), that has an
“acquired distinctiveness”
 “Deceptive Similarity” – one TM created with the deliberate intention of
making the customer mistake it for another TM. (like Pebsi, designed to sound
like Pepsi)
 Grounds for TM Rejection – it’s deceptive/confusing, hurtful to public
sentiment, obscene, scandalous (like, say FUCT, by Erik Brunetti). Exception –
Dumb Starbucks – that’s designed as a parody of Starbucks, not a deceptive
copy. Trademarks can be rejected for being too generic, like “Water”. Some
trademarks are flagged as “improper”, like nationally/globally recognizable stuff
(WHO, UNO, Indian National flag)
 Genericide – when the TM gets used so much, it becomes a verb – Xerox,
Google. The TM then loses the objective of helping identify the brand, because
it’s used to denote the usage.
 Registration – A registered TM is denoted by ® . An unregistered one is
denoted by TM.
 India is poor on IPR, frequent copying and Reverse engineering
Patent
 3 criteria to be patentable – Be new, non-obvious, useful; Even software or
“business methods” can be patented, meaning that only you can follow a
particular process/business model.
 The Patent Corporation Treaty (PCT) helps in patent protection for the
applicant/inventor. Patents have an FCFS system, unlike TMs – the first to file it,
gets it. Patents have a 20 year renewable lifespan
 “Tech Transfer Agreements” – Technical/Financial Evaluation for disclosure risk
assessment.
 Trade Secrets are slightly different – Recipe for Coke is protected. Company
holds on to trade secrets for a limited time period (renewable apparently) to
avoid patent hassles. Company has the say in what is/isn’t a trade secret
Copyrights
 Owing to boom in tech, data (multimedia etc.). Copyright gives you the
exclusive right to certain acts pertaining to literature/drama/music, art, film and
recordings.
 Only the copyright holder has the right to – reproduce the work, issue copies,
translate, make adaptations, make 2D to 3D versions. Copyright has a lifetime –
60 years since publication
 Copyrights are given to works, not the ideas that led to them. Ideas can’t be
copyrighted. It belongs to the person who gives a concrete form to the idea.
 In case an author creates it during employment, then first ownership goes to
the employer.
 “Garden Leave” – If a top exec leaves the firm, there’s a cooloff period where
they’re paid for no work, in order to give KTs probably.
Design
 Focuses only on aesthetics, and not the functioning of a product. Eg.
Lamborghini scissor doors.
Advertising
 Ad regulating laws – OfCom UK, FTC US, ASCI/related laws in India
 Unfair Trade Practices as per Monopolies & Restrictive Trade Practices Act:
o False representation of a higher standard, quality/qty, grade,
composition, style – in both goods/services
o False representation that used/old goods are new
o Representing false approvals, endorsements, sponsorships,
performance stats, accessories, uses/benefits/need – for goods or
suppliers (wherever sensible)
 Obviously, this depends on the circumstances and facts of the case. MRTP act is
repealed but this section is now part of Consumer Protection Act
 Drugs and Magic Remedies Act (1954) was enacted specifically against ads
around self-medication and self-treatment, especially for serious diseases (some
peculiar to women). People used to “resort to quacks” (I love that line). Magic
remedies are those trinkets that are supposed to have supernatural powers. The
act states a list of diseases and disorders, for which, such advertisement is
banned. (Why not ban it for all of them?) But it does not cover aspects of good
fortune, prosperity and all that hokum which you can’t prove.
ASCI - Advertising Standards Council of India
 Focuses on Advertisers, Ad Agencies, Media (Radio, TV, Press), Related sectors
like PR, market research, producers
 Protect consumer interest and fair play among competitors
Unsubstantiated Claims / Puffery
 Let’s Face it – Red Bull doesn’t actually give you wings
 Advertisers make superlative claims, which reasonable people aren’t supposed
to take literally (Luckily, we aren’t reasonable people at all). This is mostly in the
form of humourous, imaginative ads.
 Comparative ads also count – No, these aren’t banned per se – these inflate
their own products and denigrate someone else’s
 A TM can be infringed by an ad of the TM if the ad doesn’t abide by “honest
practices” (whatever those are), as per the industrial/commercial standards, or
it’s detrimental to the reputation of the TM.
 Falsifying a TM, or possessing something that can be used to do so is
punishable by 6 months to 3 years and 50k to 2L
 I can say that my product is better than yours, and show why, but I can’t talk
smack about your product or intentionally make you look bad under any
circumstances.
 An ad counts as misleading if –
o It has the potential to deceive its viewer, or manages to do so.
o Affect the decisions of the viewers, potentially hurting competitors
 Surrogate Advertising – you don’t put up an ad for the product you’re selling (in
case it’s illegal to advertise it, like alcohol), so instead you advertise stuff like
music CDs, Soda, clubs etc. You actually have to make these products that you’re
advertising, and these surrogate products have to be advertised in earnest/
 Dabur claimed to provide 3X more immunity, based on a pre-clinical study (no
human trials), hence it was asked to discard this claim.
 Of course, ads can’t disrespect or use national symbols for their own initiatives,
unless directed by the GoI, I suppose.
 The MRTP unfair practices above are also applicable to the Foods Safety and
Standards Act. Penalties can go upto 10L.
 Celebrity endorsements should come with a sense of responsibility wherein
celebrities are not endorsing products blindly, without fact checking via legal
representatives. If celebrities are paid to endorse a product, it counts as an ad.
 2 pronged system in India – ASCI (Self regulatory, hence limited efficacy) and
parliament. Ads not regulated well in India. ASCI not well funded
Consumer Protection Act, 1986
 Meant for provisions for consumer protection (Duh), establishments of
consumer councils and settlement of consumer disputes.
 Salient Features – applies to all goods/services (unless exempted by CG), in pvt
and co-op sectors. Provisions are compensatory.
 6 underlying rights – Right to Safety, to be Informed, to Choose, to be Heard, to
Seek Redressal, to Consumer Education
 Complainant – can include 1/more consumers or their heirs (posthumous) and
representatives, Central/State govt. or a voluntary consumer association.
 Complaint – Updated definition – can be about the price that’s beyond the
price set by law, or displayed on the product/price list, or price agreed upon. Also
includes complaints about hazardous stuff being offered for sale (without
adherence to safety standards/laws, or without knowing that they’re unsafe)
 Consumer – is basically the person who purchases the goods/service for
consumption, not for their own income or other commercial purposes, resale, or
for reconversion from immediate products to final ones. If you don’t pay for it
and are affected, you aren’t covered. Minimum level of transaction needs to be
proved.
 E-commerce is a relatively gray area because jurisdictions are not clear.
Services
 In connection to (not ltd to) banking, fin, insurance, transport, processing,
energy supply, housing….does not include free services or contract of personal
service. This includes all potential users capable of using the service.
 “Contract of Personal services” means a master-servant sort of setup, thus
comes with a pre-decided obligation to perform duties. This also means services
of an employee to an employer. Both cases are excluded from the legal
definition.
 “Contract of service”, however, is included in the ambit, because it considers
the service relationship between doctor-patient – no master-servant
relationship. (Can be at he same power level)
 Eg. of charging extra on credit cards – consumers can file a complain
 Example on how to establish medical negligence – a medical practitioner is
expected to exercise a degree of skill and care using their knowledge. Failure to
do so amounts to negligence.
 It’s not an offense if you do it in good faith, without criminal intention and
doing a lawful deed. If there is a possibility of risk, due consent must be taken
(from patients, in this case).
 Occupational Negligence and Professional negligence are different – if I give
you x alternative in good faith and to the best of my ability, and an actual expert
gives you y, then I’m not liable to negligence charges. Also, I can’t be charged for
not using any knowledge/equipment that wasn’t available at the time due to
uncontrollable factors.
 Res ipsa loquitor -rule of what is evident
 Burden of proof always lies with the consumer in India, but sometimes they
can’t prove technical claims
Jurisdiction
o District Forum– Value under 20L, for cases within the gerogr limit
o State Commission – Value under 1Cr, for cases within the state
o National Commission – Value over 1 Cr, for cases within the country
 Each Commission has the power to go against the judgment of the commission
lower in hierarchy, if the lower court’s jurisdiction wasn’t authorized, was unable
to exercise jurisdiction or exercised it illegally.
Paramjyot’s stuff
 (Source – pg 22-39 of Raj’s notes + online definitions)
 Doctrine of Constructive Notice and Indoor Management
 Doctrine of Constructive Notice– While dealing with a company, it is presumed
that the other party would have read the public documents and understood its
contents. Hence, they cannot hold the company accountable for irregularities in
dealings due to their own negligence.
 Doctrine of Indoor Management – Exception to the above – People dealing
with a company are entitled to presume that the company is following public
regulations and thus, it’s internal requirements are met. Hence, the people are
not bound to enquire about the company’s internal proceedings/regulations.
 In summary – Tu tera dekh, main mera dekhun,

 Indian Definition of a company - A registered association which is an artificial
legal person, having an independent legal, entity with a perpetual succession, a
common seal for its signatures, a common capital comprised of transferable
shares and carrying limited liability.
Registration of Companies
 Companies Act 1956 was overhauled entirely because of siloed functions
between law and regulators, duplications across multiple bodies (SEBI, ED),
falling behind EU standards
 Public and Pvt companies – Public companies are publicly financed, pvt
companies via Private placements
Types of Companies
o Proprietorship – Absolute liability. You own the business. Any losses
made in it come from your personal pocket. It is not recognized as a
separate legal entity
o Partnership – Distributed Liability. A group of people own a share of the
company. Any profits/losses are shared in the same proportion.
Company has a right to claim your personal assets. Can be registered or
unregistered
o Limited Liability Partnership – Partnership wherein your obligations to
the company are limited to the amount you’ve contributed in it. Your
personal assets cannot be claimed
o PLC – Pvt Ltd Company – the shareholder liability is limited to their
share capital, and/or guarantee. Max 200 members or shareholders
o OPC – One Person Company – needs a director and a nominee director,
both have limited liability
Independent Corporate Entity
 A business entity acts as an artificial legal person, formed by a legal person or a
group of legal persons to engage in or carry on a business or industrial
enterprise. It has a distinct corporate and legal personality.
 Board of directors is responsible to work in the best interest of the company,
employees, shareholders, stakeholders, community, environment
 Any company must be registered under the 2013 Companies Act, or any of its
predecessor versions.
 Entities for legal disputes – Supreme Court > High Court > (“Court of Facts”)
Criminal Court, Civil Court
 Rule of harmonious Interpretation/Construction - when two provisions of a
legal text seem to conflict, they should be interpreted so that each has a
separate effect and neither is redundant or nullified.

 Since the constitution has borrowed inputs from different countries, it also
borrows the precedents from the same. The “Ratio” tool is used to determine
which precedent comes closest to the case (whatever that means)
 Vicarious liability – you’re responsible for someone else’s action (eg. Act of
Omission); Absolute – your own action (eg. Act of commission, somehow)
 “Consensus Ad Idem” – Total agreement – needed for changes to contracts
Essentials of a Company
 Independent Corp Existence, Limited Liability, perpetual Succession (the
company lives on even if the people die), separate property (assets that belong
to the company), transferable shares (for ownership of the co), capacity to
sue/be sued, finances/professional management.
Memorandum of Association
 It defines the constitution and scope of powers of the company. It contains the
following specific details:
o Name of the company (with ltd as suffix); 20 day reservation period for
the applied name (???); the name clause is not applicable to charitable
objects (section 8)
o State with registered office address
o Objective– the purpose for which the company was incorporated
o Liability of the co - Ltd/Unltd by shares, amt of guarantee, contribution
expected from members in case of winding up, debts and liabs when
they leave the co, cost of winding up charges.
 Penalty types – cancellation, imprisonment, fines. Penalty can be for misinfo,
and is decided by the ‘Registrar of Companies(ROC)
 Articles of Association (AoA) – mentions Board of directors and daily functions
of the co. Can be changed be resolution and ROC should be notified.
 AoA contains the following:
o Declaration by Advocate/CA/CS or by a declared director.
o Declaration of subscribers to the memorandum and names of people
declared as first directors
o Address of correspondence till registration
o Names, address, nationality, prints etc. (…of?)
o CIN – Corporate ID no.

  Sec 6 - Act to override memorandum. (???)
 Presumption of innocence – Innocent until proven guilty\
Corporate Fraud
 These lead to penal and compensatory liabilities
 SFIO – Serious Fraud Investigation Officer – they have power of arrest and
investigation, and can act as watchdogs.
 Hierarchy in case of investigations – NCLT (National Company Law Tribunal) ->
NCLAT (NCL Appellate Tribunal) -> Supreme Court.
 NCLAT is a Quasi-Judicial Body (2 technical members) and Supreme court is a
judicial body. To approach a higher court, apparently there’s a “provisional pass
on order based on facts and infirmity” (No idea what that means)
 Capital Clause – No minimum paid up capital needed (lord knows what for)
 Fraud – Willingly Deceive by hiding/fabricating info.
 Doctrine of severability means that a law is void only “to the extent of the
inconsistency or contravention”. Don’t force-fit it.

 Public companies file these reports to the ROC – Annual Financial Statements,
Cost Audit Report, Director’s Report, Independent Director’s report
 Too many reports slow down company formation;
 Lok Adalat – to clear court cases quicker.
Problem with 1956 Companies act - Independent and Individual directors weren’t
mandated to file reports to ROC.

Prospectus
 “Shelf prospectus” – According to the Section 31 of the Companies Act 2013
(Section 60A of the Companies Act 1956), Shelf prospectus is a kind of public
offering where the issuers are allowed to offer and sell the securities to the
public without the need for a separate prospectus for every offering. Has a life of
1 year
 “Red Herring Prospectus” - According to the Section 32 of the Companies Act
2013 (Section 60A of the Companies Act 1956), the Red Herring prospectus is a
prospectus that does not give the complete details of the quantum or the
securities, like the price of the shares that are being offered, or the number of
shares that are being offered, or the amount of the issue. The Red Herring
 prospectus is filed by the Registrar and SEBI. Should be 3 days prior to opening
(…of what?)
Contents of a Prospectus
 Everything about the company in MOA/AOA, Governance Structure,
Bankers/Advisors/Trustees, Date of Opening/Closing, Board of Directors
Statement, Risk perception statement from managers, financial details,
subscription amount, declaration of compliance with 2013 act
 Obviously, legally conflicting prospectus cannot be issued. Willful
representation in a prospectus has a criminal liability. Civil liability for mis-
statement (commission or omission)
 To escape this liability, a person has to prove – prospect was issued without his
knowledge, and he withdrew consent upon knowing, or withdrew before the
issue of the prospectus.

Types of Directors
 A director must act in good faith to promote the company “object” (mission), in
the best interest of company, employees, shareholders, community
 Source - (https://taxguru.in/company-law/types-director-companies-act-
2013.html )
 Residential Director: –Every company should appoint a director who has
stayed in India for a total period of not less than 182 days in the previous
calendar year. That person is the first point of contect.
 Independent Director: –an alternate director other than a Managing Director,
Whole Time Director Or Nominee Director. The following type of companies
which have to appoint minimum 2 independent directors - Public Companies
which have Paid-up Share Capital-Rs.10 Crores or More, turnover- Rs.100 Crores
or More, total outstanding loans, debenture, and deposits of Rs. 50 Crores or
More. The independent director should not have any vested interest in the
company – monetary, relations, or otherwise.
 Small Shareholders Directors: – Small shareholders can appoint a single
director in a listed company.
 Women Director: –there should be at least one woman as a director on the
Board. The company is a listed company and its securities are listed on the stock
exchange and paid-up capital of such company is INR 100 crore or more with a
turnover of INR 300 crores or more.
 Alternate Directors:- in case the de-facto Director is absent from India for at
least three months.
 Nominee Directors:- They can be appointed by certain shareholders, third
parties through contracts, lending public financial institutions or banks, or by the
Central Government in case of oppression or mismanagement.
 Shadow Director:– A person, who is not appointed to the Board, but on
whose directions the Board is accustomed to act, is liable as a Director of the
company. Typically appointed when a parent company puts their director on an
acquired company
 Executive Directors - either a Whole-time Director of the company (i.e., one
who devotes his whole time of working hours to the company and has a
significant personal interest in the company as his source of income), or a
Managing Director (i.e., one who is employed by the company as such and has
substantial powers of management over the affairs of the company subject to the
superintendence, direction and control of the Board).
 Non-Executive Director a Director who is neither a Whole-time Director nor a
Managing Director.