Subject: Intellectual Property Rights.

Department offering: International

Business

Some basic concepts to

understand the subject .
 KNOW THE MEANING OF THE
FOLLOWING TERMS.
 Law
 Object of Law
 How laws are made?
 What are rights and obligations
 Role of courts and State
 Nature of law.
 What is an Intellectual Property?

 Any useful Information or knowledge

 Intelligence, time and money spent to
create something
 Property and it is to be preserved and
protected up to some years.
 Invention is encouraged
 Characteristics of property
 Can own the property
 Can use the property
 Can deal in anyway one likes as per the
law of the country
Types of Intellectual Properties
 Artistic Property
a. artistic works
b. Literary works
c. Musical works
 Industrial Property
a. Inventions
b. Trademarks
Inventions
Useful products
Useful manufacturing processes

Protection in the form of

Patents
Petty patents
Inventors certificate
Trade marks
True trade marks
Collective trade marks
Certification marks
 Authorities for enforcement.

 Municipal Laws
 National Laws
 International Laws/ CONFERENCES AND
CONVENTIONS
Why to protect Intellectual property
rights?

 Have a say in industrial social and cultural

development
 Transfer of technology is made easier
 Inspires the sprit of competition
Legal protection is available for the
following

 Right of Artists, painters ,musicians, sculptures and photographers

 Computer programmers
 Performers and producers of phonogram's
 Traders in their trade mark
 Inventor for patent in his invention
 Computer technologists for their layout design and integrated
circuits for patent
 Plant breeders in biotechnology for a new plant variety grown by
them
 Designer for his distinctive design
 Manufacturers Businessmen on their business secrets
on geographical indication in relation to the products
Creator for integrated circuits
 Time of delivery
 On the date fixed in the contract
 If there is no date-within reasonable time after the
conclusion of the contract
 If Time is mentioned- anytime within the time period –
unless the contract authorizes the to check the time
 Seller to turnover the documents relating to the goods
the contract requires
 Seller has the right of curing in case of non conformity
of goods

 Curing without causing any inconvenience or loss or

expenses on the part of the buyer.
 Conformity of goods
 Seller to deliver the gods which are of the
quantity quality and description
 Required by the contract packed as
required
 International conventions on
Intellectual Properties.
 Paris Convention : Industrial properties like patents and designs
 Burne Convention : Literary and artistic work
 Rome convention : Protecting the performers and producers
 of Phonograms and Broadcasting
 Corporations
 Washington
 Convention : Integrated Circuits
 Geneva Convention : Protection of new plant varieties
 COPY RIGHT

 Creates an exclusive right to produce or reproduce,

perform his work-in all ways and known and possible
 Author has a right in the work that he creates
 It is immaterial whether the right is registered or not
 If opt for registration- assignee is sure of the ownership
 Help to approach the court
 Helpful to the author’s successors.

 RECENT AMENDMENTS HAVE MADE THE

RESGISTRATION COMPULSORY
 Copy right
 Pecuniary rights
Legislative or judicial grant of authority
that entitles an author to exploit his
work for economic gains

 Moral rights of the author -

Right of the author to prohibit others
from tampering with their work
 COPY RIGHTS

Pecuniary rights
Right of reproduction
Right of public performance
Work in material form
Right of reproduction
Right of distribution
Right of exhibition
 Nonmaterial form
 1.Right of recitation representation and
performance
 2.Right of broadcasting
 3.Right of communicating the work by
means of sound and visual
 4.Right of connecting broadcast station
 Right of Reproduction
 German Statute Law
The right to make copies of work irrespective of
the method and numbers
 British Copyright Act

Reproducing the work in any material form

 French Copyright Act

The material fixation of a work by any method

that permits indirect communication to the
public
US Copyright Act
Making copies
 Distribution rights
 The German Copyright Act
 The right to offer to the public or place in
circulation the original work or the copies
of the work
 Right of an author to place a copy righted
work into circulation for the first time
 Doctrine of exhaustion
 Once the copyrighted work is in circulation
the author has no further right to control
its distribution
 Right of Performance

Right of an author to communicate a copy

righted work to the other public
Moral rights
Right of an author to prohibit others from,
tampering with a copyrighted work
 WORK
 Intellectual creation in the field of art, literature,
music or science
 Literary work
Work eligible for copy right protection Literary
work and musical works including
accompanying work dramatic work including the
accompanying music, Choreographic work,
pictorial graphic and sculptural work, motion
picture and audiovisual works and sound
recording,
 ORIGINAL WORK
 To avail the protection the work should be
original

 ORIGINALTY
Creative effort invested by an author into
Raw material that give them a new quality or
character
Necessary that labour skill and capital should be
expended sufficiently to impart to the product
the same quality character which the raw
material did not possess
 What is protected under copyright
Act?
 Not the idea but expression of the work
 Copyright Act does not apply to ideas
procedures methods of operation

 Neighbouring rights
Rights similar to the right that are
protected by different statute
 LAWFUL USAGE OF
COPYRIGHTED MATERIAL
 In the Court of Law for asministrative
proceedings
 POLICE INTERESTED IN THE
MATESERIALS TO MAINTAIN PUBLIC
SAFETY
 For instructional purpose in schools
 For purely private use
 For quoting in scholarly work
 Noteworthy speeches.
 OFFENCES/PUNISHMENTS
 Knowingly infringing the copyrights: 6 months and may
extend up to 2 years and a fine of Rs.20000 to a
Minimum ax. of 200000
 Infringement not for gain: Reason to be recorded in
writing. Punishment less than 6 months Fine less than
Rs.50000
 Subsequent and second infringement: One year
imprisonment-May be extended upto 3 years. fine of
Rs.10000 may be levied may go upto Rs.50000
 Making use of the computer programming :
Imprisonment from 7 days up to 3 years . Fine
minimum Rs.50000 can go upto Rs.2000000
 Computer Programming not used for gains: Reason in
writing. No imprisonment A fine upto Rs.50000
How the copyright is exercised?

 Licensing for a period of years

 For number of copies

 What constitutes an act of
infringement?
 Literary work
 Copying in full or in part is an act of
infringement
 Covers sketches drawings worksheets etc
prepared by the author
 Compilation does not infringe the copyright.
Compilation involves independent judgment
not an act of infringement
 DRAMATIC WORK
 Copyright covers all aspects of drama

MUSICAL WORK
Printing and selling copies of musical work
Performing musical work in public for profit.
PHOTOGRAPHS
Which looks like one already taken
 Communication

 Communication to a single man amounts

to communicating to the public
 PATENT
 Meaning
 Granted by the state in favor of the inventor
Right to use his invention to the exclusion of
others
 Term of 5 year ( food/medicines related )
 14 years –other cases
 Inventor not using the right

 Use in association with others

 Assign/grant licenses to others for a
consideration

WHAT IS GRANTED IN A PATENT
 A PREVILEGE OF MAKING
 MANUFACTURING
 SELLING
 USING THE INVENTION
 A RIGHT TO AUTHORISE OTHER TO DO SO
 ABSOLUTE PROTECTION
 INFRONGER TO BE RESTSRAINED BY INJUNCTION
 LIABLE TO COMPENSATE THE INVENTOR FOR THE
LOSS SUFFERED/THE PROFITSS GAINED BYTHE
INGTINGER
 NOT BOTH
 What is granted in a patent
 Computer programmes, tables compilation
including data base- are considered to be
literary works.
 Sale of a single copy –amounts to the
work already in circulation
 Software packages purchased for use in
one computer if it is used in another it is
an act of infringement,
 Remedies for the act of
infringement
 Civil: Suit for injunction/
Perpetual injection
Suit for damage
Suit against the destruction of the
work
Suit for declaring the ownership
 Criminal
 Administrative
 Fair Use
 Ideas systems information things of practice use are not subject to
copy right
 Research purposes
 Judicial practices
 Member of Legislature
 Reproduction of certified copies Reciting from the work
 Extracts from the copy righted work
 Works used as amenity provided for residents of a premises
 Making of not more than 3 copies by a librarian
 Reproduction of matters published in the official gazette
 Proceedings of legislature
 Reproduction of any report appointed by the committee
 Reducing 2 dimensional work into 3 dimensional work
 Punishments

Punishments can be levied

simultaneously and separately
 PURPOSE OF THE PATENT
 Encourages research /promote the inventive
genius
 Award the inventor for the useful inventions
 Protection to inventors
 Encourage research and development
 Quantitative and qualitative increase in
production
 Aiding the industrial growth of the country
 Generate and promote scientific temper
 PATENT POLICY

 Guided by the economic policy of the

state
 To be in conformity with the bilateral
treaties of the state (GATT)
 PRINCIPLE OF PATENT LAW
 Granted only for invention/new and useful
 Must have novelty and utility
 Novelty may mean using in combination
with other elements producing
advantageous results –sufficient to
consider as novelty to support a patent
 Invention becomes the property of the
inventor when patented
 Who can apply for a patent?
 Person claiming to be the first inventor of the
invention
 The legal representative of the deceased
 The assignee
 Inventors jointly
 In the name of the orgn. If it procures
 From the inventors
 Invented by the employee but application by the
employer- employer gets the patent with the
name of the employee
TRUE AND FIRST INVENTOR
 Application of mind and skill
 Inventing a new and novel thing for the
first time is the true inventor
 Joint invention – only one applies ,he
becomes the true and first inventor
entitled for a patent
 OBTINING KNOWLEDGE FROM OTHER
INVENTOR –IS NOT THE TRUE OR THE
FIRST INVENTOR
 True and first ……..
 The importer of the invention- not the true –first
inventor
 Getting the knowledge of the invention from
abroad- not the inventor –true inventor Person
giving the idea is not the original inventor but
the one giving practical shape to it
 Persons financing the invention cannot become
the true/real inventor- no patent can be issued
in their name.
 Foreign applicant
 Foreign national residing outside India can
apply for a patent in India
 Inventions made by him in India/outside
India
 In the capacity of assignee within India /
outside India
 Apply for patent in any convention country
 PATENTABLE INVENTION
 Invention- An act results in a new product or
new result or a new process or a new
combination for producing an old product
 Granted only to the inventions which arae new
and haves commercial value –not a matter
already known
 Invention claimed must be useful -lack of utility
patent may be withdrawn even on a later date
 Must relate to manufacture of tings which are
corporal and substantial
WHAT IS AN INVENATION-As per
the definition of law
 Any new and useful art process method
or manner of manufacture
 Machines appliances and other products
 New and useful improvement in the
product manufactured
 Must have industrial application-No patent
for a theory
 Must relate to process and products which
are marketable
When claimed to be a patent must
relate to
 Applied arts ,technology, processes, methods
employed and their manner in which they are
applied in manufacture, to the machines
apparatus and articles used in the manufacture
and to the substances produced
 There is nothing like alleged invention.
 A NEW SOLUTION TO THE TECHNOLOGICAL
PROBLEMCAN BE SUBJECT MATTEROF A
PATENT.
 NO INVENTION

 An invention which is frivolous

 An invention intended to be used contrary
to law or morality or injurious to public
health
 A mere discovery of a scientific principle
 A mere discovery of a any new property or
new use for a known substance without
resulting into a new product
 Substance obtained from mere admixture
 How to apply for a patent?
 Apply with all seriousness
 Appropriate prescribed form/All enclosures in triplicate
 Pay the fee along with the application
 If sent by post- Registered post with ack/due

 Accompanied by provisional specification or complete specification together

with drawings in triplicate
 Proof of right to make application within 3 months from the date of
application
 Application toi have the name of the inventor and to say he is in possession
of the invention
 If applied to a foreign patent particulars are to be furnished along with the
application and to inform the progress to the controller of the patent File a
declaration of inventor ship along with the application or within 3 months if
extension is requested
 One application /one invention
 Precautions
 All objections will be noted
 All copies to be filed are to be attested by
the competent authority
 Seal of the attesting officer in all papers
 Drawings –designs are to be drawn in
papers of a proper quality
prescribed/according to the scale
 Failure to follow – application will be
returned.
 Stages in registration.
 Securing official acknowledgement
 First stage –office objection
 Second stage-examination by the
examiner
 Third stage -Acceptance and proceedings
in opposition
 Fourth stage Sealing of patent
 Refusal to grant patent -consequence
 FIRST STAGE
 Controller examining the application-filing
in accordance with the procedures
 Layover period -12 months+3 months of
extension
 SECONDSTAGE

 Examination by the examiner

 Communication of objection to the
applicant and its rectification
 Report with in 18 months
 THIRD STAGE
 Publication in the official gazette
 If there is no objection – patent will be granted.
 Objections received within 4 months – full
opportunity will be given for making
representation-examine the evidence Controller
vested with the powers of the tribunal –has the
power of the Civil Court
 Controller feels that the objector is entitled to
the patent, he willhelp the applicant to get the
patent
 FOURTHSTAGE

 Within 6 months of the order of objection

patent will be granted
 Applicant to apply to the controller to
register the patent and grant him the
patent certificate and seal the patent
 The applicant is called a patent holder.
 GROUNDS FOR OPPOSITION
 Wrongly obtained the invention
 The invention claimed is already published
 There is prior claim
 That there is prior knowledge of the cam made
 The invention suffers from obviousness and
lacks inventive step
 The complete specification does not describe the
invention
 Applicant failed to disclose information reuired
under the act.
 OBLIGATION OF THE P[ATNT
HOLDER
 Patent holder must work the patent
 Pay the renewal fees as prescribed in
accordance with the s on due date every year
 No renewal fee for the period during which a
direction given by the Controller to keep the
patent secret,
 Failing to pay the renewal fee in time he may
get extension unto 6 months and pay the
renewal fee accordingly
 RIGHTS OF THE LPATENT
HOLDER
 Patent is a monopoly right granted
 Terms of patent- 5 to 7 years for food and drugs- 14
years in case of all other patents.
 Patent not working – it may be opened up for
compulsory license.
 Central Government may declare any patent under
compulsory licensing to any one who applies for license
- Known as ‘licenses of right’
 Central government has the right to use the patent for
its own purposes with or without paying royalties
 Patent is liable to be revoked when found to the
detrimental to public interest
WORKING OF THE PATENT
 Product patent
 To make use exercise sell and distribute to the public the articles
in India
 If process patent to use /exercises the method of process and
produce and make them available to the public/ himself or
through the agent
 Accidental variations in the working of the patent / or the
process – keeping the economy in mind
 To report to the controller every year the progress of the work
under the patent / failure to submit is an offence punishable
under the Act
 Failure to work the patent/ not working the patent
satisfactorily /Working the patent detrimental to the public
 Leading to Compulsory licensing/Licensing of right /acquisition
of patent by the government
 COMPULSORY LICENCING
 Patent , a monopoly right to be used properly –if
not govt. will interfere
 Abusing the right-slack in working the patent in
a commercial scale-not making available the
product in adequate quantities/or at reasonable
prices/refusing to grant license to others/getting
the patented goods imported from other
countries
 Controller of patent interfere and take steps
 Issuing of compulsory licensing.

 Compulsory licensing
 Three years from the date of sealing of the patent
 Application from one stating that public interest is not
reasonably met/not available to the public at reasonable
prices
 The Controller may direct to grant the license/terms and
conditions prescribed by the controller
 Patent holder given an opportunity to explain his point
of view to defend himself.
 Applicant to prove that all the grounds required to be
established for grant of license
 Controller to consider the nature of invention time
lapse , measures taken to use the invention , financial
capacity of the applicant to work the patent
 Compulsory licensing contd.
 As per the Central Government's opinion-to safeguard
the public interest
 A declaration in the official gazette
 Controller to grant license to any one /make the article
manufactured be available to the public
 When the patent holder commits default in using the
invention
 By endorsing the patent with the word “License of
right/controller will grant license to the applicant to work
with
 The endorsement will be published in the gazette
 The royalty will be 4% of sale price in bulk of
patented article
 PATENT Infringements-Remedies
 Patent is a monopoly right – One who breaches
the monopoly is said to be infringing the right.
 Monopoly rights-exclusive right to make use,
exercises sell or distribute the article
manufactured in accordance with the patent
/process- Nobody else can use the patented
product or process.
 Purchasing and selling of patented products is
not an act of infringement/selling counterfeit
 patented products is an act of infringement
 Using a patented invention /a process to produce
goods is an act of infringement.
 Acts of Infringement
 Persons directly or indirectly help the act of infringement is also an
infringer
 Inducing a person to commit an act of infringement is also an act of
infringement
 Seller of a machinery which enables the person to produce articles
is not an infringer
 Person enabling to reassemble the machine which is patented
comes within the scope of infringement
 The consignees of the infringed articles can be proceeded against
as infringer
 The carriers and warehouse owners can not be proceeded against
for infringement


 Suit against infringement
 Right to sue belongs to registered holder of the patent
 A licensee cannot sue for infringement unless the terms of
agreement provides
 A license holder under compulsory license and the licenses of right
cannot sue the infringer
 The holder of compulsory license can call upon the patent holder to
take action
 If no action is taken by the patent holder within 2 months he can
take action against the infringer
 Assignee can take action from the date of his assignment registered
with the controller of patent
 Infringement prior to assignment can take action as co-plaintiff
 Several infringers committing all of them can be proceeded against
 Actions against those who are residing outside the jurisdiction of
the court or even abroad
 Defenses against infringement
 Person suing is not entitled to sue
 Acts complained do not constitute infringement
 There is an implied license to use
 Licensee may claim that the conditions of the patent
holder invalid
 Act was committed during the period when the patent is
not in force
 Infringement is innocent and the infringer is ready to
take a license
 Patent is liable to be revoked
 When the patent holder is estopped from the
proceedings with the infringement due to court order.
 Relief available
 Patent holder can sue the infringer for permanent injunction
 Ask for damages / for a direction to render an account for profits
 Previous notice is not required to take action against the infringer
 Innocent infringement-injunction only will be granted-no damages
 Failure to pay the renewal fee
 Patent holder to prove his legal title-the loss that he suffered is
immeasurable / Court grants injunction only after satisfying all the
conditions
 The court may not refuse to grant injunction when infringement is
clearly established.
 Infringer can claim damages or an count of profits and not both
 Damages in the form of cash equivalent of the injury sustained by
the patent holder /the account of profit is taken for determining the
profit made.
 Relief available
 The court with adequate reason may order
for the destruction of the infringing goods
 As per the opinion of the court it maybe
delivered to the patent holder.
 TRADE MARK

 Objectives
 To help to identify the goods
 Helps to select the desirable product
 Definition
 A symbol/can be label affixed on the product
 May be a ticket that can be tagged
 Can be embossed or integrated into the article
 REGISTRATION
Not compulsory/But there are
advantages

 To establish the title

 Protects the owner from unauthorized
infringement
 To negotiates business dealings with
others/especially with the government


 NONREGISTERABLE MARKS
 A mark without distinctness
 Marks which describing the shape quality and
quantity of the article or the nature and quality
of service
 Trade mark prohibited by the Names (prevention
of improper use) Act 1950/Drugs and Cosmetics
Act of1940/Drugs and Magic Remedies Act of
1973(now FEMA)
 Any mark deceptively similar to other names
 INFRINGEMENT OF TRADE
MARK
 If the registration of trademark is not valid under law-
the person using the mark is not an infringer
 If the registration is conditional-person using the mark is
not an infringer
 Trademark registered to a limited area –using it beyond
the area is not an act of infringement
 Person confide uses the trade mark of another without
the knowledge of the trade mark registered- is not an
infringer
 Trademark having a word –in course of time if it
becomes a word commonly used in business-is not an
act of infringement
 INFRINGEMENT OCCURS
 Other than the owner of the trademark using the
mark on his goods and services in course of his
trade –An act of Infringement
 The offending mark must possess all features of
the trademark to be called as infringement
 Adopting a feature which the owner disclaims at
the time of registration-is not an act of
infringement
 Adopting the whole of the trademark with
alteration in colour –amounts to infringement
 Use of trademark by another in advertising and
letterheads –amounts to infringement
 REMEDIES AGAINST
INFRINGEMENTS
 Regtd. proprietor and registered user of trademark can
file a suit
 Order for injunction restraining him from continuing the
acts of the infringement and also for damages.
 Delay in filing a case the court may refuse to grant
interim injunction
 Damages to the extent of loss suffered and the
reputation and goodwill
 Damages in terms of advantages and profits gained by
the infringer
 Factual- Basis for the amount claimed
 Court can ask the infringer not to dispose his assets
 Civil and Criminal action on the infringer
OFFENCES AND PENALITIES
 Two classifications a. Falsification of
trademark b.Falsely applying the
trademark
 Trademark deceptively similar to
registered one, -falsification of trademark
 Fabrication of genuine trademark by
alteration or addition and effacement –
falsification of trademark
Offences relating to Trademark
 To make or possess and die block machine
or plate or other instrument for purposes
of falsifying the trademark
 Persons applying the false trade
description to goods and services offered
are infringers
 False Trade Description
 Trade description –untrue and misleading
 Altering the trade description by addition or
effacement
 Description denoting that the contents of the
package are more or less in quality or
measurements
 Altering the marks or their arrangements or their
combination leading a person to believe that the
goods are of the persons other than those who
are its actual manufacturers
 PUNISHMENTS

 Not less than 6 months of imprisonment which

may extend up to years and a fine –not less
than Rs.50000 –may extend up to 2 lakhs.
 The court can levy less punishment –less than
the minimum also.
 Second and subsequent offence –the term of
imprisonment shall not be less than one year –
which may extend up to 3 years and a fine of
not less than Re. one lakh-which may extend to
sRs.2 lakhs
 Court may order for less punishment-but record
the reasons for less punishment
 Contd…...
..
 Falsely representing the trademark as registered
one when it is not registered –punishable with
imprisonment for 3 years with fine or both
 A person falsely representing he is connected
with Trademark Registry –can be sentenced up
to 2 years or with fine or both
 Person tampering with official record or produce
or tender copy of evidence-liable to be punished
imprisonment of 2 years /with fine /both
 Accused is other than the infringer –court may
award imprisonment an
 d fine or both
 Penalties
 Textile goods removed without required mark
imprinted or them is also liable to be punished-
with 1000Rs
 No imprisonment
 In case the accused is a company-any one
director, manager secretary who have given the
consent shall be punishable
 As per the opinion of the court all the goods
and things may be forfeited-direct ho they are to
be destroyed
 GEOGRAPHICAL INDICATIONS
 Protection to geographical indication for the local names
also for the names abroad which have gained reputation
 An obligation under GATT
 To exclude unauthorized person from misusing the
geographical indications
 To protect the consumers against deception to get
wrongful advantage and profits
 Suggests special or particular quality of goods produced
in a specified area or country
 It is binding on all countries of TRIPS who are
signatories of the convention.
 TRIPS on geographical
indications

 The country claiming protection for

geographical indication must legislate on
this subject recognizing and registering a
specified geographical indication
 NATURE OF GEOGRAPHICAL
INDICATIONS

 It is the property of the community. Seller

of goods with geographical indications will
have to get a license
 MEANING
 Indication identifying goods originating from a
territory having a given quality reputation or
other characteristics attributable to their
geographical origin
 Goods to have reputation and quality
attributable to the place of origin environment
and their and inherent natural human factors
 Name of the geographical area or any figurative
representation suggesting the geographical
origin of the produce and goods may be used.
 MEANING Contd…..
 It can be a word or combination of words
 Goods refer handicrafts and food stuff
such as “ Golkonda toys and Hydrabadi
Briyani”
 Indication is available for all producers of
that region.
 PROTECTION
 Through registration protection is granted
 Authority “The Registrar of Geographical
Indication”
 Not granted to any Individual- it is a national
property
 Granted to associations of persons producers or
to an organization or authority representing the
interests of the producers of goods . Eg. Coffee
Board, Tea Board, Species Board,ICAR
 APPLICATION - CONTENTS
 TO state how the goods are produced, processed
prepared or manufactured in the specific locality-
reputation achieved for the quality and other
characteristics
 Reputation built is exclusively for that territory
 Reputation so built is inherently natural and traceable to
geographical environment and human factors prevalent
in that area
 Statement containing particulars of the producers of that
concerned goods proposed to be initially registered who
shall be entitled to use geographical indication
 A map of the territory and a description of the material
with words and figures.
 RIGHTS & OBLIGATIONS
 The registered proprietor of geographical indication and the
authorized users shall have the exclusive right
 Non member cannot initiates action against the users
 Can be used by printing on the packages and containers.
 It may be embossed or woven into or affixed to the goods.
 It may be used in letter heads and in all advertising materials
including electronic media and display
 May be used in labels and in water marks
 Rights are not transferable but heritable. Cannot be transferred
through a will
 Authorized user guarantees that the goods supplied by him are
genuine and that the indication is not falsely acquired or falsely
applied
 INFRINGEMENT
 Unauthorized use of regtd. Geographical indication in respect of
goods which originate from the area other than those registered
ones to mislead the public
 Also consist of acts of unfair competition
 All acts which creates confusion among the competitors, dealing in
goods from the indicated area
 Acts involving false allegations to discredit the registered user of
the geographical indications
 Acts misleading the persons to believe that the goods dealt with by
the authorized users are not of the same quality as claimed under
the registered geographical indication
 Using another geographical indications in respect of goods
registered under a different geographical indication
 Claiming the same quality for the goods supplied by one that of
geographical indications already registered
 Remedies
 Actions can be taken by the proprietors and the
registered users
 Relief – Injunction and damages.
 Injunction to restrain from continued usage and
a money degree for the loss suffered by the
plaintiff or for the profits gained by the infringer
 The suit shall be filed with the District Court as
per the provision of the Geographical Indication
of Goods Act
 PENALTIES FOR
INFRINGEMENT
 For falsely applying the geographical indications or falsify the geographical indication
the infringer is liable to be prosecuted and punished with imprisonment of not less
than six months
 May be extended up to 3 years with fine of Rs 50000 – may be extended up to 2
lakhs
 For repeating the offence liable to be prosecuted and punished with imprisonment
of not less than one year and the minimum fine shall not be less than Rs.2 lakhs
 False representation of geographical indication-3years imprisonment fine or both.
 Both punishment can be granted
 Court can order forfeiture of goods-forfeited goods may be sold and proceeds
deposited to the credit of the government or
 The products may be destroyed
 persons tampering the official record –liable to be prosecuted and punished with
imprisonment of two years or fine or both
 Any one leading the other to believe that his office is connected with Geographical
Indication is punishable with imprisonment of 2 years and fine or both
 PROTECTION OF NEW PLANT
VARIETIES & FARMERS RIGHTS
 Plant Varieties and Farmers Rights Bill
199-Objectives
 Protect and benefit the breeders of new
plant varieties
 Benefit the cultivators and conservers of
traditional local plant varieties which may
be used for the development of new
varieties
 To encourage the growth of seed industry
 New Plant varieties
 A monopoly power to use and sell the seeds and
planting materials of the new plant
 Farmers are to register the varieties
 Rights are protected by granting a share in the profits
gained on the sale of seeds and planting material
derived from registered new plant varieties along with
the breeders
 Granted facilities to save for their own consumption and
use of the seeds and planting materials and to sell to the
market the products grown
 Those who use the new plant varieties for business –
have to take a license from the breeder
 Process and plant discovered are also protected
 Who is a breeder
 One who discovers a new variety or one who
develops a new plant variety by using his skill of
research
 Discovering the new variety means locating a
new plant which is already in existence due to
his intelligent search
 Registration –only to the varieties notified by
the Central Govt.
 Preventing commercial exploitation is necessary
to prevent order or public morality or serious
prejudice ton the environment
 Plant means ?
 Cultivated plant and wild relatives
belonging to the kingdom of plant and not
animal excluding micro organism

 New plant variety
 A variety which is novel, , uniform and stable.
 Propagating material or seeds are not sold

in India earlier than one year and 4 years outside India

It is not the same but is clearly different from other plants
in its essential characteristics
It is uniform meaning that all the plants of the variety shall
have the same characteristics subject to some variations
It shall be stable that successive generations of the plants
shall continue to have without any variation
 Registration
 The breeder to ascertain whether the plant variety is
included in the genera or species notified by the Govt
 Check up whether the variety is not prohibited by the
central govt
 Breeder to ascertain and assign a denomination number
to his variety as per the international classification
 The No. may be made of letters or combination of
letters and figures written in a language already known
 The applicant cannot assign the denomination the
registrar may permit the applicant to propose a
denomination of his own
 The applicant to get his new variety catalogued by the
institution recognized by the central government
 Registration ………..
 Applicant to supply to the registrar such quality of seeds and
planting materials as may be required for conducting experiment
along with the fees for such experiments
 The applicant to make a declaration that the variety proposed does
not contain any gene sequence involving terminator technology
 A statement explaining the characteristics distinctiveness uniformity
and stability and shall also contain a full pass poet data of the
parent lines from which the variety is breeded
 The applicant must be a breeder or the discoverer of new plant
variety
 The registrar will publish calling for objections if any Registrar will
provide opportunity to hear the objections
 Registrar grants the certificate of registration and publish the
registration granted to the breeder
 Essentially derived variety and
Extant variety
 It is a variety derived from initial variety
 It is a variety retaining the essential
characteristics of the initial variety and yet
clearly distinguishable from such initial
variety
 Extant variety is one for which there
sexists a common knowledge and which
was notified as under the Seeds Act
 Rights and Privileges of the plant
breeder
 An exclusive right to produce sell market
distribute import or export the new plant variety
and its produce
 Right to authorise any person to produce sell
market or other dealings with the new plant
varieties
 Right to appoint agents and grant licences who
in turn can produce sell market distribute or
import or export
 Agents and licensees entitled to get them
registered to get a certificate with terms and
conditions agreed by the plant breeder
 Rights and privileges………
 Registrar is competent to decide the disputes
between registered breeder and the agents
 Researchers using the variety as initial source
for creating other variety should be authorised
by the breeder of the registered variety
 Not offecting the right of the farmers to use the
registered plant variety to save use exchange
share or sell the farm produce
 Farmers not entitled to sell for reproduction
purpose under commercial marketing
arrangement
 Benefit sharing
 This right is available only in IPR

 Obligation on the registered breeder to pay the conservers the plant variety for
germinating materials used by the breede

 Beneficiaries are the persons who conserve the plant variety


 The proportion out of the benefit accruing to he breeder may be determined by the
Protection of Plant Varieties and Farmer’s Rights Authority for payment to the
beneficiaries

 Nature and use of the genetic materials used will be the base fir benefit sharing

 The breeder to deposit the amount to Gene Fund from when the amount is drawn
and paid to the beneficiary
 Compensation is paid to the community also- the same procedure is followed.
 Period of validity
 The registration is valid for 3 years
 Can be renewed up to 18 years in case of
treed and vines
 15 years in other cases
 Protection of Biological Diversity
-Need and purpose
 Biodiversity encompasses the variety of all life on earth
 India is one of the 12 mega diversity countries of the
world
 With 2.5 per cent of the land area accounts for 7 to 8
percent of the recorded species of the world
 India is equally rich with traditional and indigenous
knowledge
 India – a party to the Convention on Biological diversity
(1992) –The objects of the convention-1.Conservation of
biological diversity- sustainable use of the components
-fair and equitable sharing of benefit arising out of
utilisation of genetic resources
 To facilitates access o genetic resources
by other parties for environmentally sound
purposes
 Stakeholders include Central government
state government Institutions of local self
government scientific and technical
institutions experts non governmental
organisaion industry etc
 Salient Features
 Regulation of biological resources of the country
to secure equitable share of benefit arising out of
use of biological resources
 To conserve sand sustainable use biological
diversity
 To respect and protect the local knowledge
 To secure sharing of benefit with the local people
 Conservation and development of areas
important from the standpoint of biological
diversity by declaring them as biological diversity
sites.
 Regulations
 Without the previous approval of the National
Biodiversity Board n no one (citizen of India NRI a body
corporate or association organization incorporated
Corporations registered with non Indian participation in
capital cannot obtain any biological resource occurring in
India for the commercial purposes.
 Every foreigner or every Indian associated wit foreigner
cannot use the biodiversity resources without the
permission of the Board
 No Indian can transfer biological resources for monetary
consideration who is not a citizen of India
 Regulations ……….
 Publication of research paper or
dissemination of knowledge in a seminar
does not come under this category
 Collaborative research does not amount to
obtain biological resources or transfer of
the results of research
 Terms of research collaboration to be
decided by the government
 Salient features……
 Protection and rehabilitation of threatened
species
 Involvement of institutions of self
government in the implementation of the
Act.
 LAW

 What is law?

 What is the objective of law?

INTERNATIONAL BUSINESS LAW
 Rules and norms that regulate the
activities carried out beyond the legal
boundaries of a state
 Regulates transaction between
 State to State
 State & person
 Person to person
 PUBLIC INTERNATIONAL
LAW
 Contract between two states

PRIVATE INTERNATIONAL LAW

 Rules that regulates the affairs of private

persons internationally
 COMITY
 Curtsey between states of treating each
other with goodwill and civility
 -allowing a foreign diplomat to import for
their own private free of customs duty.
 -Not a legal right guaranteed by
international law
 STATE PRACTICES
 Conduct and practices of state in their
dealings with others.
 Mutual treaties at the conclusion of
international conference.
 Bilateral treaties
 STATES
 Are political bodies that have a territory population
government capable of entering into international
relations and a government capable of controlling its
 territory and peoples.

 TREATY & Conventions

 Treaties and conventions are equally powerful –equal to
legislations
 Treaty is a legally binding agreement between two
states
 Convention is also legally binding agreement between
states sponsored by international organization such as
UNO
 CUSTOM
 Long established tradition in if it is observed consistently
and regularly
 Recognized by the state and it is a matter of obligation
to follow
 Consistency –does not mean length of time-need not be
accepted by all –not regularly followed by all –accepted
by a reasonably a large number of states practiced long
enough established by the state
 OPINIO JURIS SIVE NECESSITATIS-States must
recognise the custom and practice and consider it as
binding-considered to be an obligation and not as
courtesy.
 GENERAL PRINCIPLES
 Principles of law common to the world-
 200states follow two major systems
 Anglo American /Romano Germanic civil law
system
 Municipal laws are considered to be subservient
to international law
 Municipal law cannot prevail over International
law (Greco Bulgarian Communities case)
Municipal law to be in compliance with
International law –International Tribunals treat
municipal law as mere facts
 CONTRACTS FOR
INTERNATIONAL SALE OF
GOODS
 ULF/ULIS replaced by/CISG
 ULF was adopted –Third world countries and eastern
blocs were not represented.
 CISG is in vogue in 62 states and in 8 international
organisation
 Adopted at the conference held in Vienna in 1980-
supported by developing developed and communist
countries
 CISG organised in 4 parts Part I=articles 1 to 13 deals
with general provision for sale and interpretations. Part
II=deals with formation of contract Part III article 25 to
88 deals with rights and obligations of the sellers and
buyers Part iv deals with ratifications and enforcement
of rules of conventions
 CISG
 Applies to international sale of goods
 Buyer and seller must have place of business in
different states
 Both states must be contracting parties to the
convention
 Rules of private international law must lead to
the application of CISG
 Applies even when the place of business are not
in contracting state/buyer and seller must be
from their states
 SALE AS PER CISG.

 No direct definition-defines seller’s and

buyers obligations
 Sales: Delivering the goods /handover
documents relating to them and transfer
property in goods as required by the
contract.
 Buyer to exchange the goods for a price
 Apply to moveable and tangible goods
 Goods.

 No definition/6 kinds of sale not governed by the

contract of sale
 3 based on the nature of contract and another 3
based on the type of goods.
 Exclude the goods bought for personal and
family purpose and household purposes-Auction
sale/Sale by the authority of law
 Stocks and shares investment securities
negotiable instrument and money/Vessels ships
hovercrafts aircraft and electricity,
 Includes patent rights, copy rights, and trade
marks –sale is governed by CISG
 MIXED SALE
 Delivery of the product along with the services
 Contracts to manufacture and supply is sale
 Buyer to provide all the components for the
manufacturing – does not come under mixed
sale regardless of the size and value
 The idea is to create a uniform body of
international commercial sale
 Courts direct to look into 1.Convention2.General
principles 3.Rules of private international law..
 GENERAL PRINCIPLES
 A PARTY TO THE CONTRACT HAS THE
DUTY TO COMMUNICATE INFORMATION
NEEDED BY THE OTHER PARTY
 Parties have the obligation to mitigate the
losses resulting from a breach
 General principles are to be derived from
the conventions and the private
international law will be a source of
interpretation of the convention
 SALES
 Court will look into the statement the conduct,
usages and practice of the parties
 Consensus ad idem – will to the terms –meeting
of the minds
 CISG has nothing to do with actual state of mind
of the parties –Judge the parties by their act
 The subjective intent of the parties can best be
judged for interpreting the CISG
 NEGOTIATIONS
 Subjective or objective intent –to be
decided by the court of law. Due
consideration to all relevant circumstances
including the negotiations leading up to
the contract between parties
 Practices between the parties
 Conduct of the parties after the formation
of the contract,
 FORM
 Contract be in writing-The English Statutes of
Fraud-1677-requires a signed writing for
enforcing –as per UK Sale of Goods Act-US
Uniform Sales Act –US Uniform Commercial
Code
 UK replaced the requirement of writing .
 In civil law countries the requirement does not
apply to commercial transactions.
 In socialistic countries writing is needed.
 If a contracting party is from a socialistic country
form must be writing. Otherwise not needed.
 Formation of the contract.
 OFFER: Proposal addressed to a specific
person indicating an intention by the
offeror to be bound by the sale or
purchase of particular goods for a price.
 The pro forma invoice – is an offer
 Definiteness – offer becomes definite
when it indicates the goods and expressly
or implicitly fixes or makes provision for
determining the quantity and price
 OFFER

 To describe the goods with sufficient

clarity
 Parties must know what is being offered
for sale
 Must state the quantity and price
 Price is implied when it is not expressly
discussed –a price generally charged
 SPECIFIC OFFERS
 May be addressed to one or more specific
persons
 Proposal made to public is an invitation to
make an offer –to negotiate
 General offers – only invitation to
negotiate
 Effectiveness of the offer
 Becomes effective only when it reaches the
offeree
 An offer said to be irrevocable can be with
drawn before it reaches the offeree.
 Offers can be revoked any time before the
offeree dispatches his acceptance.
 POST BOX RULE is applied-which limits the ability
of the offerer to cancel an offer where the
offerer has relied on it
 Under common law acceptance must be in the
same mode – under CISG acceptance can be in
any means
 Firm Offers
 Offerer agrees to keep the offer open for a
fixed period of time even without consideration
– enforceable under CISG
 To be signed by the offeror-for a limited period
of time
 Promise of irrevocability need not be signed.

 There is no time limit

 Enforceable if the offeror makes the offer
irrevocable
 ACCEPTANCE
 Agreement to enter into a contract
proposed by the offeror
 A statement /conduct by the offeree
indicating his assent is needed
 The assent is communicated to the offeror
 Un limited forms are available to
communicate his assent eg. A purchases
order is an acceptance.
 Effect of silence

 Silence or ineffectiveness wil not

constitute acceptance
 “I assure you have accepted unless I hear
from you otherwise”
 “Unless you hereby otherwise from me
within 3 days after receiving your order I
will deliver" First case is forcing something
and the second case seller assumes there
is a duty to respond
 Rejection

 Becomes effective only when it reaches

 The offeree
 Offeree dispatching both rejection and
acceptance at the same time the one that
reaches the offeror first be given effect to
 Acceptance with modification
 Buyer responding with an acceptance that
modifies terms of the contract is called BATTLE
OF FORMS
 Merchants use different forms for making offer
forms of fine print on the reverse side of the
forms commonly matching with the offer.
 They will be called as proposal . If
inconsistencies are material party<s liability will
be altered materially.
 Performance
 Parties are entitled to get what they
expected from their contract.
 One party breaches the may avoid or
make a demand for specific performance
 Fundamental breach
 One party substantially deliver what the
other party reasonably anticipate , there is
fundamental breach.
 The remedy is to seek avoifdance
 Remedy of avoidfance
 To be entitle d to avoid a contract the injured
party in all cases notify the other party
 Be able to return the goods already received.
 Avoidance does not cancel any provision in the
contract
 Concerned with dispute settlement any other
provision governing the right and duties of the
parties due to avoidance of the contract
 Specific performance
 CISG authorises an injured to require
specific performance if the other party
carryout his obligation .
 Court is not obliged to grant specific
performance
 Court can do so under its own
discretionary rule
 What is specific performance
 Varies from country to country
 In common law countries Court can
compel the defendant to do a specific act
such as delivering the goods
 Disobeyance amount to contempt of the
court
 Civil law countries
 Requesting specific performance is
broader sense benefiting one at defaulter
expenses.
 He may buy a substitute
 Court may not impose a fine or fine on
disobeying
 Prerequisites vary
 Seller’s obligation
 Deliver the gods
 Handover the documents relating to them
 Ensure goods confirm with the contract. If the
court fails CISG fulfills the gap Place is the place
agreed to in the contract
 If not Carriers place of business if it involves
carrying of goods
 Palace where the parties knew the goods were
located or to be produced.

 Sellers obligation

 Identify the carrier

 Identify the goods and the carrier and the
marking on the goods -by shipping
documents or other document or
otherwise Give the buyer a notice of
consignment of the specific goods
 Failure to comply is a breach of contract
 Seller will be liable for any damages
 Sellers obligation
 Deliver the goods
 Handover the documents relating to goods
 Ensure goods confirm with the contract
 CISG fulfils the gap in case the court fails
 Place of delivery
 Place agreed to in the contract.—if not
 /carrier’s place of business if it involves
carrying of goods
 Place where the parties knew the goods
were located or to be produced
 Shipping the goods
 Seller to arrange for shipping
 Not specifying the carrier or terms-
transportation to be appropriate in the
circumstances
 As per usual terms and condition for such
transportation
 Seller not required to arrange insurance-
provide -all the information to enable to
insure
 Seller on delivering to the carrier
 Identify the carrier- both goods and the
buyer and marking on the gods by
shipping documents or otherwise
 Give the buyer notice of consignment of
the specific goods
 Failure to comply is act of breach of
contract
 Seller will be liable for any damages.
 Factors determining conformity
 Party’s agreement
 Fit for the purpose for which goods of the same
description would ordinarily be used
 for the particular purpose made known expressly or
impliedly to the seller at the time of conclusion of the
contract
 Possesses the quality of goods that the seller proposed
to sell /as per the sample model
 Packaged /contained in the same manner usual for such
goods
 No manner mentioned-manner adequate to preserve the
products
 Conformity….
 Goods do not confirm if they are subject
to third party’s claim
 Third party’s claim includes ownership and
right in intellectual property like copy right
patent and trademark
 If the parties agree there need be no
confirmation
 Time for examining goods
 Buyer to examine the goods for defects within as
short a period as –practicable after delivery
 When goods are shipped- the examination may
be deferred after the goods have arrived at the
board
 On redirection of the goods –Despatch of goods
– no examination when goods are in transit
 Examination only on arrival of the goods to the
destination
 Curing defects
 Seller gods early-he may correct or cure
the defects up to the agreement upon the
date of delivery
 Not causing any inconvenience to the
buyer or expense
 Buyer can claim damages when defects
are caused as per CISG
 BUYERS OBLIGATION
 To pay the price
 To take delivery of the goods
 Take step to make payment
 To pay the price at the time or place designated in the
contract
 No time mentioned- payment when goods are
delivered /documents are delivered
 Seller to make a formal demand in civil law country
 Parties agree otherwise
 Buyer to pay without any formality on the part of seller
 Pay only after examining the goods unless otherwise
agreed.
 Taking delivery
 Buyer to cooperate with the seller to
transfer the goods
 Buyer failing to cooperate will be
responsible for any resulting
 One who fails to take delivery assumes
the risk for any damage to the goods
after that time
 Passing of risk
 Loss by fir theft and by other means can
occur prior to delivery during transit or
inspection or after delivery
 Passage of risk decides who is responsible
for the loss.
 Generally losses are covered by insurance
 Passage of risk
 Shifting of responsibility for loss or
damage from the seller to the buyer
 Once the risk passes the buyer will have
to pay the agreed upon
 The buyer must absorb the cost or claim
from his insurer
 CISG allocates the risk depending upon
the agreement of the parties and the
means of delivery
 Agreement of the parties
 CISG allocates the risk depending upon
the agreement of the parties and the
means of delivery
 Parties do so by means of use of trade
terms like CIF, FOB etc
 Means of Delivery
 Goods may be transported by a carrier or
by the seller without transporting it
 CISG Differentiate four types
Shipment, transshipment, and
destination contracts.
 Shipment contract
 Contract requires the seller to deliver the
goods to a carrier for shipment and does
not require the seller to deliver then to a
particular place the risk of loss passes
when the goods are handed over to the
first carrier
 Transshipment contract
 The seller to deliver the goods to a carrier
at a named place the risk of loss passes
to the buyer when the goods are handed
over to the carrier
 In transit contract
Goods are sold after they are aboard the
carrier
Risk of losses passes to the buyer at the
time the contract is concluded
If the seller knows or ought to have known
that goods had been lost or damaged and
did not disclose to the buyer the risk will
remain with the seller
 Destination Contracts
 The contract requires the seller to arrange
transportation to a named place of
destination the risk of loss passes to the
buyer when the goods are handed over
or placed at is disposal at that placate.
 Goods delivered without being
transported
 When goods are not shipped to the buyer
the risk of loss passes when the goods are
handed over by the seller or otherwise put
at the buyers disposal
 Goods are not considered to be put at the
buyers disposal until they are clearly
identified .
 REMEDIES
 CISG provides for remedies that are
1.Unique to the buyer
2.Unique to the seller
3.remedies available to both parties
 Buyers remedies
 Buyers remedies are cumulative
 The Right to recover damages is not lost if
a buyer exercises any other available
remedy
 They are also immediate
 CISG forbids a court or arbitral tribunal
from granting the seller a period of grace
in which to comply with buyers demand
for remedy
 Remedies Unique to the buyer
 1.To compel specific performance
 To avoid the contract for fundamental
breach or non delivery
 To reduce the price
 To refuse early delivery
 To refuse excess quantities
 These remedies are available whether the
sellers breach affects the whole contract or
only a part.
 Specific performance
 Availability of specific performance
depends on the domestic rules applicable
to the court of hearing If available the
buyer can ask the seller to supply a
substitute or make repairs
 The buyer must notify the seller that the
goods are non conforming
 If non conformity is quoted it must
amount to a fundamental breach.
 NACHFRIST NOTICE
 Fixing of an additional period of time of
reasonable length for performance by the
seller of his obligations.
 Period must be definite and the obligation to
perform within that period must be clear.
 Once the nachfrist period is over the buyer will
have a reasonable time in which to avoid the
contract
 During the nachfrist time the seller has the time
to correct the at his own expenses
 Even when there is a breach the seller is entitled
to make cure unless it is a fundamental breach.
 Reduction in price
 Remedy that allows a buyer to pay less for
nonconforming goods in those cases
where the buyer is not entitled to
damages
 The amount of reduction is determined by
a formula that looks at the relative price of
conforming and non confirming goods at
the time of delivery
 Formula for Price Reduction
 Price reduction =[Price]--
 Price X value of goods as delivered divided
by value of conforming goods at the time
of delivery
Refusing early delivery and excess
quantity
 If the seller delivers early the buyer is
under no obligation to take delivery
 If the seller delivers more than the agreed
amount the buyer may accept or reject
the excess part.
 If the buyer accepts the excess he must
pay for it moist
 Effect of non conformity in part
 CISG provides that the buyer may seek
specific performance ,obtain s price
reduction or avid that part of the contract
 For avoiding the contract only when the
partial delivery amounts to a fundamental
breach of the whole
 SELLER’S REMEDIES
 Remedies are similar to the buyers
 They are cumulative and immediate
 Right to recover the damages is not lost
even when a seller exercises any other
remedies
 Court will not grant grace period in which
to perform
 Unique remedies available to the
seller
 Compel specific performance
 To avoid the contract for a fundamental
breach or failure cure a defect
 To obtain missing specifications
 Seller’s right of specific
performance
 If a decree of specific performance is
available under the local law
 Seller may require the buyer to take
delivery and pay the contract price
 Perform any other obligation required by
the contract.
 AVOIDANCE
 Seller may avoid the contract only if there
has been a fundamental breach or
 Following the nachfrist notice refuses to
cure any defect in hiss performance
 Missing Specifications
 Allows a seller to ascertain speciation himself
when the buyer fails to supply them as required
by the contract or within a reasonable time after
the seller requests them
 In accordance with the requirements of the
buyer that may be known to him
 Seller must inform the buyer of what he has
done
 Set a reasonable time period for the buyer to
supply different specification If the buyer does
not respond the seller’s specification become
binding
Remedies available for both buyers
and sellers

 Suspension of performance
 Avoidance in anticipation of a fundamental
breach
 Avoidance of as installment contract and
 Damages
 TRANSPORTATION
 Trade terms describe time place price and manner in
which transfer of goods will take place
 Terms used in domestic trade varies from country to
country
 In US Uniform Commercial Code defines the term and in
U.K. case laws are referred
 CISG allows parties to incorporate trade terms of their
choice
 Mostly widely used private terms are published
International Chamber of Commerce called inco-terms
 Use recognized by trade counsels-courts and by the
lawyers
 INCOTERMS
 Most widely used private terms are published by the
International Chamber of Commerce – called ‘incoterms’
 Published in 1936 and the current version is incoterms
2000
 Parties to express their desire clearly
 Otherwise apply the definitions used in their own
jurisdiction
 Parties to refrain from casually adopting any particular
trade terms.
 Failure to use incoterms will result in deciding the case
based on local commercial practice
 Classifications of incoterms
 E.Group-Exworks (EXW)
 F -Groups-FCA-FAS
 C-Group -CFR-CIF-CPT
 D- Group-DAF-DES-DEQ-DDU-DDP
 Application
 Sea and Inland waterways-FAS-FOB-CFR-
CIF-DES-DEO

 Any other form of transport EXW-FCA-

CPT-CIP-DAF-DPU-DDP –USED IN
MULTIMODEL TRANSPORTS
 FREE TERMS
 It means the seller has an obligation to
deliver the goods to a named place for
transfer carrier
 National laws treat the word free in the
sense that the parties to identify the terms
and also related rules.
 FOB
 FOB- Free on Board- confined to sea born trade. ICC uses in
connection with carrier by sea.
 Common law countries use this term for inland carriage also
 Seller to deliver the goods on board of the vessel to be designated
by the buyer named by the customer at a particular port.
 Example FOB Singapore means the buyer to name the ship that will
accept delivery in Singapore. Seller to deliver the goods on board as
required by the port in Singapore
 Seller is responsible for getting goods on board a ship designated by
the buyer.
 What is on board?
 Traditionally the goods on board a ship the movement they cross its
rails- the goods should have been appropriated. clearly set aside for
the contract.
 FOB
 Seller continues to be liable for goods
even after the buyer chosen the ship take
control of the goods at the end of the
cargo and began to offload the goods
from the dock.
 If the goods remain unidentified the seller
is responsible even after the goods loaded
on the ship
 FAS
 Free alongside ship/Free along side
 Seller to deliver the goods to a named port alongside the
a vessel
 The vessel to be designated by the buyer in a manner
customary to the port

 Alongside means goods within the reach of the tackle

 Seller to hire lighters to take goods to the ship in the
port
 Responsibilities are similar to that of FOB
 Responsibilities of the seller ends upon delivery of good
alongside
 CIF
 Cost Insurance and Freight
 Buyers prefer it because buyers have little things
to do until the goods arrive in the port of their
country
 CIF price quoted can be compared with price
from suppliers around the world
 Exporter may be under pressure from the
government to use national carriers and
insurance
 Exporters can have a good comparison
 CIF
 Requires the seller to arrange for the carriage of goods
by sea
 To a port of destination
 Turnover the documents necessary to obtain the goods
from the carrier
 To assert a claim from any insurer if the goods are lost
or damaged
 Seller to provide 3 documents -invoice, insurance policy
and bill of lading. Represents three elements of the
contract
 Sellers obligations are complete when documents are
tendered to the buyer
 Buyer has an obligation to pay for agreed upon price
 COST & FREIGHT
 Seller does not have to procure marine
insurance against the risk of loss or
damage to the goods during transit
 Insurance required under CIF has to cover
only the minimum condition
 Buyer wishing to buy a minimum would
like to buy more extensive policy will want
C&F contract.
 DELIVERED EX SHIP
 On arrival the contract requires the seller to
deliver goods to the buyer at an agreed upon
port of arrival
 Seller has to cause delivery to be made to the
buyer from a ship which has arrived at the port
of delivery reached a place /as usual for delivery
 Seller to pay the freight or release to shipper’s
lien
 Furnish to the buyer effectual direction to the
ship to deliver –until it is done the buyer need
not pay Seller remains responsible for the goods
until they are delivered
 FCA
 Free Carrier – applies to any form of
transport
 Requires the seller to deliver the goods to
a particular carrier at a named terminal-
depot – other places where the carrier
operates
 Cost of transport and risk of loss shift to
the buyer at that time..
 EXW
 Seller is obliged to deliver the goods at his
own place of business
 All transport cost and the responsibility of
the buyer.
 FREIGHT FORWARDERS OR
CONFIRMING HOUSE
 Use of Freight Forwarders will save time and expenses.
 Freight forwarders arrange 3 out of 4 ships move across the
Newyork deck
 Companies with special knowledge of international marketing,
finance transport, customs sales law and other related matters
Licensed by the govts. in most countries.
 In US freight forwarders are licensed by the Interstate Commerce
Commission
 Air Freight Forwarders are licensed by Civil Aeronautical
 Board
 Ocean Freight Forwarders are licensed by Federal Maritime
Administration
 Unlicensed brokers and agents also offer limited service
 PERFORM MORE IMPORTANT SERVICES LIKE BOOKING OF OCEAN
FREIGHTERS AND HANDLING OF CARGO
 Functions of freight forwarders
 Obtain quotation on CIF & CAF contracts
 Determine the availability of ship and other port facilities
 Estimate cost based on gross weight cubic feet value description of
goods and port of destination
 Book space
 Process export documents
 Review letter of credit terms
 Tracing inland shipment
 Export declaration
 Authenticating consular invoice
 Processing certificate or origin from local Chamber of Commerce
 Purchasing Insurance
 Presenting banking drafts and collecting paymesnt
 International Carriage of Goods by
Road (CMR)
 Applies whenever goods are shipped between two
countries at least one be the signatory of the convention
 Carrier to issue consignment note and it is not a
negotiable instrument
 Prima-facie evidence of the making of a transport contract
and receipt of and condition of goods
 It is a right to demand delivery of goods in exchange for a
receipt and sue the carrier in his own name for any loss or
damage or delay for which the carrier is responsible
 Until the time the goods are turned over to the consignee
the shipper has the right to order the carrier to stop
them in transit to change the place of delivery or even
order to deliver them to different consignee
 Multiple carrier
 All carriers are treated as party to the contract and each
is responsible for the entire transaction.
 Suit can be brought against the first or last carrier or
the carrier in possession at the time of loss
 Carriers are liable for loss damage or delay up to the
liability limit set by the convention The consignment
note should have a reference to CMR
 The liability limit is 8.33 Special Drawing Rights per kg
unless the consignment note declares a higher value and
pays surcharge
 Consignment note fails to include a reference to the
CMR the carrier will be liable for any resulting injury
 CMR
 Burden of proof rests on the carrier
 No liability for the damages, delay or the loss caused by
the consignor /consignee
 Carrier not liable for the inherent defects in the goods
 Consignee to notify the carrier within 7 days of delivery
to assert a claim for loss or damage and within 21 days
to make a claim for losses resulting from delay
 COTIF contains the same provision as the CMR
 The carriers liability for loss is confined to 17 SDR per kg
 CARRIAGE OF GOODS BY SEA
 The owner or operator of a vessel is wiling
to carry goods for more than one person
 Common carriers are subject to municipal
legislation and international conventions
 Three sorts of common carriers-
conference line , independent line , tramp
vessels
 Types of common carriers
 Conference line: Association of sea going
carriers who have joined together to offer
common freight rates
 Independent liners have their own rate
schedule
 Tramp vessels have their own rates but
not operating in regular line
 Rebates on Freight
 Exporters who agrees to ship all or a large shae of their
cargoes with a conference line receive a discounted rate
 Independent lines however generally offer lower rates
than a conference line’s non
discounted rates.
 The tariffs of ocean carriers are not regulated

 Conference and independent lines offer discounts and

rebates
 Americanlaws prevent rebates and the ocean carriers
have to file their tariff with the Federal Maritime
Commissionr
 BILL OF LADING
 An instrument issued by an ocean carrier
to a shipper with whom the carrier has
entered into contract for the carriage of
goods.
 Treaty governing the bill
 International Convention for the
Unification of Rules of laws relating o Bill
of Lading
 Known as Hague Rules prepared by the
International Law Association at a meeting
held at Hague 1921 Brussels Convention
 1924
 Rules were revised in 1968 and the
revised version is called Hague Visby Rules
 Purpose of the Bill
 It is carrier’s receipt for goods
 It is an evidence of contract f carriage
 It is a document of title to goods that the
document represent
 Bill as receipt for goods
 Describes the goods put on the deck
Weight and the condition, Form is filled in advance by
the shipper
When the goods are loaded the tally clerk will check to see
the goods loaded are as per the list
Carrier is liable to check at the compliance
see that the packages are not damaged.
If everything is proper the agent will sign and return to the
shipper
Bill with a certification that goods have been properly
loaded on board is called a CLEAN BIL OF LADING.
 Claused Bill of Lading
 When goods are loaded the tally clerk notes the
discrepancies a notation to the effect may be
added to the bill and the bill is called Claused bill
of lading
 Bill is prima-facie evidence and the gods loaded
and listed must tally
 Not acceptable to third parties including a
 Bank
 can be made only at the time when goods re
loaded – Later notation will have no effect
 Bill will be treated as Clean Bill
 BILL AS CONTRACT OF
CARRIAGE
 Evidence between the shipper and the
carrier to carry the goods
 It is a conclusive evidence when
negotiated to a good faith third party. It
is because the endorsees knowledge of
the terms of the contract of carriage is
limited to what appears on the bill of
lading.
BILL AS A DOCUMENT OF TITLE
 Straight bill issued to a named consignee bandit
is nonnegotiable
 The transfer of straight bill gives the transferee
no greater right than those of his transferor.
 An order bill on the other hand is negotiable and
conveys greater rights.
 The holder of an order bill has a claim to title
and by surrendering the bill to delivery of the
goods
 He should have received the bill in good faith
through due negotiation
 ORDER BILL
 May be made to bearer or to the order of a
named party
 Bearer instruments are transferred by mere
delivery and order instruments are transferred
by negotiation i.e. endorsement and delivery
 Negotiation of order bill transfers the title in the
goods
 This enables the person named on the bill to
transfer the goods while a ship is in transit
 The possession of the order bill is same as
possession of the goods.
 Carrier's duties under a Bill of
Lading
 Making the shop seaworthy Properly
manning equipping and supplying the ship
 Making the holds refrigerating and cool
chambers and all other parts of the ship in
which goods are carried fit and safe for
their reception carriage and preservation
 Properly and carefully loading handling
stowing carrying keeping caring for and
discharging the goods carried
 Carrier’s Immunities
 Hague and Hague Visby rules exempt carriers from liability from
damages that arise from
 Act , neglect, default of the master mariner, pilot or the servants of
the carrier in the navigation or in the management of the ship Fire
unless caused by the actual fault or privity of the carrier
 Perils dangers and accidents of the sea or other navigable water
 Act of God
 Act of war
 Act of public enemies
 Arrest or restraint of princes rulers or people or seizure under legal
process
 Quarantine restrictions (contd)
 Carrier’s immunities
 Act or omission of the shipper or owner of the goods or his agent or
representative
 Strikes or lockouts or stoppage or restraint of labor from whatever
cause, whether partial or general
 Existing provisions should not relieve the carrier
 Riots and civil commotions
 Saving or attempting to save life or property at sea
 Wastage in bulk or weight or any other loss or damage arising from
inherent defect quality or vice of the goods
 Insufficiency of packing
 Insufficiency of or inadequacy of marks
 Latent defects not discoverable by due diligence
 (Contd)
 Carrier’s immunities
 If the cargo is injured and the injury falls
within one of the exemptions the carrier
will be responsible if the underlying cause
was s the result of the carrier’s failure to
exercise due diligence in carrying out its
fundamental duties.
 LILABILITY LIMITS
 Limits are established by conventions
 The Hague Rules of 1921 limit the carrier’s liability to
100 UK pounds per package or 100 pounds per unit
when shipped in customary freight units
 The relief was felt inadequate and the limits were
dramatically raised in the Hague Visby Rules
 The limits were 10000gold franks per package or unit or
30 gold francs per kilo of the gross weight of the goods
lost or damaged whichever is higher

customers
The god or poincare is not a unit of currency but an
amount of gold
 At current conversion rate is US $ 1 or UK pound .60
 Limits do not apply if the parties agree for higher rates
 Liability limits
 The rates will not apply if the carrier acts
with the intention of causing damages or
recklessly and with knowledge that
damage would probably result
 Claim for loss or damages must be
instituted within one year after the goods
were or should have been delivered.
 The claim may be instituted by filing suit
or commencing an arbitration proceeding.
 Third party’s rights
(Himalaya clause)
 Hague and Hague Visby Rules apply only to the
carrier and the party or parties shipping goods
under a bill of lading.
 Third parties who help in the transport of the
goods but who are not parties to the carriage of
goods contract contained in the bill of lading
have no contractual rights to claim the liability
limits prescribed by the convention
 The officers crews, members agents and brokers
who work for a carrier as well as stevedores who
work for a shipping line can be sued under local
laws without applying the convention rules.
 Himalaya clause
 Is a term in the bill of lading that
extends to third parties the carrier’s
liability limits established by the Hague
and Hague Visby rules
 CHARTER PARTIES
 A contract hire the entire ship for a particular
voyage or for a particular period of time or a
said period of
 Bulk commodities are transported only this way
Hague and Hague and Visby rules do not apply
to charter party
 Chatterer and the owners are free to set the
terms of their contract
 Slandered contracts drafted at various
conferences -known by the name Baltime
/genon
 VOYAGE CHARTER PARTY
 A CHARTERER EMPLOYS A SHIP AND ITS
CREWS FOR CARRYING GOODS FROM
ONE PLACE TO ANOTHER the chatterer
and the ship-owner have entered into
voyage charter party
 The owner agrees to provide the ship at a
named port at a specific time and carry
the goods to contract destination
 Voyage Charter party
 can charge dead freights for the amount of deficiency
 Dead freight charges will be noted on bill of lading
issued Chatterer agrees to provide full cargo and to
arrange for its loading at an agreed upon time Less than
full load is provided
 Ship-owner by the ship-owner and a holder who
acquires the bill will be obliged to pay the charge before
turnover the cargo
 Lay-day- The days that a chatterer may keep a
chartered ship idle for the loading of goods
 Ship owner can charge demurrage for every idle day
that exceeds the agreed upon days
 Demurrage will be secured by a lien on the cargo
 TIME CHARTER
 A contract to hire an entire ship for a particular
period of time
 Charterer pay hire monthly and monthly
instilment if not paid promptly ships can be
withdrawn
 Charterer promises to engage in lawful trades to
carry only lawful goods and direct the vessel
only to safe ports
 Bill of lading will have the terms of the
charterparty when endorsed he will be
governed by these terms
 MARITIME LIEN
 It is a charge or claim against property that exists to
satisfy some claim /debt or obligation
 A maritime lien is a charge or claim against a vessel
 The purpose is to ensure that a vessel can adequately
obtain credit to properly outfit itself for a voyage
 Vessel is a jurisdical person separate and apart from the
owner
 Ship itself is liable for ship-owners breach of contract or
for crews negligence ,damages caused without or crew’s
fault
 Owner is not essential to the existence of lien against
ship
 Maritime lien
 In civil law countries maritime lien is a right in
property but the property is or independent of
the owner
 Lien exists as a debtor against the owner
 Maritime lien does not require possession
 They attach to res (the vessel freight or cargo)
and travel with it
 They are also secret
 If the vessel is sold the lien goes with the ship
even when the owner is unaware of its existence
 Maritime lien
 In Common-law countries res is seized
without a notice to the owner
 Court takes the custody oand suit is
proceeded
 If the lien holder claim succeeds res is
sold
 Proceeds distributed to various lien
holders
 Maritime lien
 Title is transferred to the purchaser of the
res
 Multiple lien holders various claims must
be ranked
 Unification of certain rules relating to
maritime lien and mortgages (Brussels
convention) established a hierarchy
among lien claims
 Ranking of lien claims
 Judicial cost and other expenses
 Seaman’s wages
 Salvage and general average
 Tort claims
 Repairs suppliers and necessaries
 Ship mortgages
 MARITIME INSURANCE
 Trade terms decide who is responsible for purchasing maritime
insurance
 Seller continues to have interest in seeing that goods are insure
 If the goods are lost the buyer is either bankrupt or unwilling to
pay- insurance is the basis for recovery available to the seller
 Individual can buy a special cargo policy
 An open end contract ensures all the cargo of an exporter during a
particular time period insured
 All the exporters shipment whether by truck rail air or vessel are
covered
 Parties in isolated sale arrange open cargo policy of a freight
forwarder or custom house broker
Perils covered by special and open
cargo policies
 Loss or damage from the sea
 Fire
 Jettison
 Forcible taking up of the ship
 Barratry
 Explosion
 Fumigation damage
 Damage from loading discharge or transshipping
cargo
 Average clause
 Loss of cargo may be either total or partial
 Loss is governed by constructive loss

Clause in maritime policy (Losses exceeding one half of the value of

the cargo)
Where the cost of recovery exceeds the cargo value of partial loss is
known as a particular average
FPA Free from particular average policy provides most limited recovery
for partial losses. This policy covers only losses from fire stranding
sinking or collusion of the vessel
With average policy provides more protection
With average policy may have a franchise clause that provides for
payment only if the loss exceeds a specific minimum amount With
average policy can be purchased without franchise
 General Average
 To avoid threat to the whole venture some
expenses has to be incurred Loss or damage is
deliberately inflicted in order to save the ship
and its cargo
 Each must contribute in proportion to the
interest each has
 To restore the party who suffered the loss or
damage or who incurred expenses This is
general average contribution
 Ship will have a a lien on the goods-can sell
them Retain that portion of sale proceeds it
receives to cover the cost of contribution
Protection of Biological Diversity
 Need
 Bio diversity includes the variety of all life on
earth. India one of the 12 mega bio diversity
countries of the world.
 India with only 2.5 percent of the land area
India accounts for 7 to 8 percent of the recorded
species of the world.
 India is rich in traditional and indigenous
knowledge both coded and informal
 India member of Convention on Biological
Diversity 1992.
 India stands for
 Consecration of biological diversity
 Sustainable use of its components
 Fair and equitable sharing of benefits arising from the
utilization of genetic resources
 It recognises the rights of the states to use the
resources and also facilitates transfer of genetic
resources for environmentally sound purpose
 Convention recognised the contribution of local
communities for the conservation and sustainable
utilization of biological diversity resources
 Sharing of traditional knowledge and practices
Stake holders in biological diversity
 Central government
 State governments
 Institutions of local self-government
 Scientific and technical institutions
 Experts
 Nongovernmental organizations
 Industry
 Salient Features
 Regulates the access to biological diversity
 Conserve and sustainable use of biological diversity
 To respect and protect the knowledge of local
community
 Secure sharing of benefit with local people
 Conservation and development of areas important for
biological diversity by declaring them as heritage of
biological diversity
 Protection and rehabilitation of threatened species
 Involvement of self government in the implementation
of the act.
Meaning for some terms used.
 Biological resources means plants animals
and microorganisms or part thereof their
genetic material and by products with
actual or potential use but does not
include human genetic materials
 Regulations
 Persons not citizens of India NRI or any organisation cannot
acquire any biological resources in India
 The knowledge associated with biological resources for research or
commercial purposes is not available without prior permission from
the National Biodiversity Board.
 No Indian citizen can transfer any knowledge or resource for
monetary consideration who is not a citizen of India
 Publication of any knowledge or research doesn't come under this
prohibition
Collaborative research does not come under this restriction-but
terms and conditions to be decided by the central government.
 No intellectual property right can emerge in or outside India for any
invention based on biological resources of India without the
approval of National Biodiversity authority
 Indian citizen to pass on the information to their respective
Biological Diversity Board in the state. Sanction is not needed.
National Biodiversity Authorities
 Constituted by the Central Govt.
 Eminent members in the field of
Agricultural research Education,
Biotechnology, Ocean Development,
Agriculture and Cooperation Indian system
of medicine and Homeopathy
 Benefit sharing
 Grant of joint ownership of intellectual property rights to
the national Biodiversity Authority
 Transfer of Technology
 Location of production research and development units
in such areas which will facilitate better living standards
Association of Indian scientists benefit claimers and the
local people with research in biological resources and bio
survey and bio utilization
 Setting up of venture capital find for aiding the cause of
benefit claimers
 Payment of monetary compensation and non monetary
benefits to the benefit claimers