With these words, I conclude.
SHRI TRILOCHAN KANUNGO (JAGATSINGHPUR): Sir, I rise to support the Bill. But certain things are to be made clear. It is no doubt a necessity for the country to have a comprehensive law for the trade marks. It is also a necessity to replace the Trade and Merchandise Marks Act, 1958. It is also a compulsion.
The hon. Member Shri Priya Ranjan Dasmunsi was telling that the present Government or the party in power are making a U-turn; they were opposing it in 1955 and they are now supporting it. In 1995, the whole of the country was burning when India became a party to the Dunkel proposal when India signed the GATT. The then Government also signed the Trade-Related Aspects of Intellectual Property Rights knows as the TRIPS. The World Trade Organisation came into being from 1st January, 1995. We were very much aggrieved at that time that India should not have done that. By becoming a party, by becoming a signatory to the WTO, we wanted to know whether we have gained or not. It is another matter. But we have not gained anything. It is my personal view that I am telling you. It is against the interests of India, no doubt. Sir, you shall agree with me in this regard. I have no doubt about it. In the World Trade Organisation and in the TRIPS Agreement, there are certain compulsions on the member-nations - whether they are developing nations or the developed nations. They have been told to frame laws relating to eight aspects. They are: (1) Copyright and related rights;(2) trade marks rights; (3) geographical indications of goods; (4) industrial designs; (5) patents; (6)lay-out designs; (7) topographies of integrated circuits; (8) protection of undisclosed information and control of anti-competitive practices in contractual licences. These eight aspects are to be enacted by respective nations. That was the Agreement. For the developed countries, one year's time was given. That means, by 1st January, 1996, they had to enact their laws if they had not done that earlier. For the developing countries like ours, four more years were granted. That means, we have time up to 31st December, 1999. Because 31st December, 1999 is coming closer, we have to pass this Bill. It is a compulsion. Out of these eight aspects, we have four existing laws: (1) the Patents Act, 1970 which is going to be amended; (2) the Trade and Merchandise Marks Act, 1958 which is going to be repealed and replaced; and (3) the Designs Act, 1911 which would be taken up very shortly and copy right Acvt, 1957, which was amended a few hours before the Copyright Act, 1957 has already been passed in both the Houses. Other laws are there. So, it is a necessity and also a compulsion by World Trade Organisation and Trade-Related Intellectual Property Rights. These two Bills, - the Trade Marks Bill and the Geographical Indications of Goods (Registration and Protection) Bill - should have been taken up together. I think, in that manner, the discussion would have been better. Let me tell you that I am also one with Mr. Munshi so far as section 115 of the earlier Law is concerned. Now, this is also there in the present Bill. A DSP will take cognizance of the offence. It should be handed over to the Sub-Inspector of Police. It is all right. He is right in stating so and the hon. Minister will definitely examine it and then bring forward the necessary Amendments.
I tell you about certain things. I come from an eastern part of this country. Most of you, particularly the ladies, are aware of `Sambalpuri' sarees and Sambalpuri handloom cloth. It is an unparalleled one. It is totally different. It is not just a printed saree. It is done by `tie-and-dye' system. The man who popularised it is no less than Padma Sri Kuthartha Acharya whose son, Shri Prasanna Acharya, has been elected to this House as an hon. Member.
The Sambalpuri saree has been copied. That has been done not by print but by tie-and-dye technique . Such a methodology or a technique has not been applied elsewhere in the world for handloom sarees like the Sambalpuri sarees or Sambalpuri cloth. The Sambalpuri saree has been imitated by others by print. Therefore, the trade in Sambalpuri sarees has been affected not only inside the country but also outside the country.
I tell you another thing. There is a sweet, called `Neemapada Jhilli'. It is made out of cheese. `Neemapada Jhilli' is made in an area from where the hon. Member Shri Braja Kishore Tripathy comes. I represent that constituency. No where in India, you can find a parallel to `Neemapada Jhilli' which is produced from cheese. Many persons have tried to copy it. But they have failed to do that.
My friends from West Bengal are here. They are very much fond of `Rasgullas'. I tell you that if anybody goes to Shri Tripathy's constituency, `Pahara Rasgulla' has been given a national name.
SHRI ABUL HASNAT KHAN (JANGIPUR): It is a Bengali form of `Rasgullas'.
SHRI TRILOCHAN KANUNGO : `Pahara Rasgullas' are different.
SHRI ABUL HASNAT KHAN : Then, what is the rate of that per kilogram?
SHRI TRILOCHAN KANUNGO : Next time, I shall bring it for you!
I tell you that unless a trade mark is given, the things would naturally be imitated and they will lose their market throughout the country.
No only this, regarding flora and fauna, there are 45,000 species of plants in this country. A clear survey has not been done and only 50 to 60 per cent of the whole of India's survey has been done. It has been done at random. They have identified about 45,000 different species of plants . There are about 81,000 species of animals and birds.
Sir, a patient, Shri Banke Behari Das, a Member of the House of Elders -- the Socialist people must have heard about him -- had come to the All India Institute of Medical Sciences. He was suffering from Rheumatism. The doctors told him that he had come from Orissa, the land of medicine for this disease. They asked him why did he come to Delhi when the medicine was available in Orissa. Banka Bata said I do not know what is and where is that medicine." The doctors told him that Indian hornbill was the medicine. The Oriya equivalent of this is known as Kochilakhaichadehi Kochilakhaipokhi. Kochilakhaipokhi, he who takes the entire thing in totality by roasting it, the rheumatism and arthritis will go.
My point is that all these things should be identified and should have been taken in right earnest long back. These trademarks and geographic indications have not been taken in right earnest for which Basmati has been patented in America by Ricetech Company as Texmati . In reply to one of the question I have heard that Meghalaya Haldi is good. I would like to inform the House that the best Haldi or Tunmeric in the world is found in Phulbani District of Orissa and Kandhas cultivate it.
1652 hours (Dr. Laxminarayan Pandeya in the Chair)
My point is that we have to be very careful. When Haldi or turmeric was going to be patented by an American company that was protested and, of course, that could not be patented there. The trade mark, the geographical indications and all those things should be taken up in right earnest. We have not done in the past, that is all those related matters and we understand it. But in 1994 we signed the GATT Agreement, that is, the trade related Intellectual Property Rights Agreement. We did all these things but we are dragging our feet for long six years on enact related laws.
I do not know that even if we enact this law, whether we would implement it sincerely or not. The hon. Minister should come forward with a statement that all these things will be taken care of and we shall see that the trade marks and also the geographical indications are dealt with sincerely. Those things will have to be taken up in right earnest and for paucity of funds, we should not fall back upon it. We should see that it is implemented properly. We are now rising when others are patenting our commodities, our Basmati Rice, our Haldi, our Neem and all other things.
Sir, in Orissa, ghritkumari is found. In Oriya it is known as Gheekumari. For blood pressure ailment, it is a patent medicine. Outside it has been tried to be patented. There are many more things which I am telling you. Another thing is Patalagaruda.
We have to register these things, bring them to the Registry and implement them in the right earnest. As it has been stated by the hon. Minister that since the passing of Trade and Merchandise Market Act in 1950, no amendment has yet been made. That shows that we have not been properly implementing it. We are not serious about the law. Now, we have to become serious about this law especially when we have opened up our economy. Whether by opening up, we have gained or lost, that will be discussed on some other day. Anyway, I support this Trade Marks Bill. I request the hon. Minister and the Government to see that it is implemented in the right earnest and nothing should stop it on the plea of paucity of funds.
SHRI E.M. SUDARSANA NATCHIAPPAN (SIVAGANGA): Mr. Chairman, Sir, even though this Bill is a belated one, we have to become richer by implementing the Act with all our efforts and with all the dynamism of the hon. Minister so that we can become richer which we have lost for the past six years. Had it come earlier, we would have protected our interest from the international competition. Therefore, I am just rushing through certain provisions alone which need some more explanations.
Clause 9(1)(a) of the Bill while laying down an absolute ground for refusal of registration of trade marks which are devoid of any distinctive character, vests unlimited discretion in the Registrar in assessing whether or not the trade mark is distinctive. The current practice of Trade Marks Registry permits overcoming of the objection of non-distinctiveness on the ground that the trade mark in question stands registered in Commonwealth countries such as U.K., Australia, New Zealand, Ireland, etc., without even letting in any evidence. Hence, a further provision may be added to the Section to give effect to the above established Trade Marks Registry practice. This is all I want to submit regarding Clause 9(1)(a).
Regarding Clause 9(3)(c), the expression "the shape which gives substantial value to the goods" is vague and ambiguous. It is proposed that it be deleted altogether. Or, in the alternative, its import may be clarified by way of a proviso or explanation.
Explanation (2) to Clause 11 lays down the guidelines for determining what constitutes a well-known trade mark. However, the guidelines be further clarified to include knowledge or reputation of a trade mark in India as a result of international advertisement and promotion which spill over into India through satellite communication etc. In this connection, it would be material to refer to the following ratio of a judgement of Delhi High Court in the case of Apple Computer Inc., Vs. Apple Industries Ltd.
"I am in agreement with the view expressed by the Ontario Supreme Court with respect to the need to carry on business in the jurisdiction in a particular territory as also regarding the meaning of goodwill in passing-off matters. In other words, it is not necessary in the context of the present day circumstances, the free exchange of information and advertising through newspapers, magazines, video, television, movies, freedom of travel between various parts of the world, to insist that a particular plaintiff must carry on business in a jurisdiction before improper use of its name or mark can be restrained by the court. Similarly, I am also in agreement with the view expressed regarding the meaning of goodwill in passing off cases. In passing-off cases, the main consideration is the likelihood of confusion and consequential injury to the plaintiff, and the need to protect the public from deception, deliberate or otherwise."
The above decision is followed by the Calcutta, Bombay and Madras High Courts also. Therefore, this may also be considered.
Regarding the clause 11(3)(a), providing for a relative ground of refusal of registration by virtue of law of copyright should be further elaborated so as to protect India's commitments under the Universal and the Berne Copyright Conventions as endorsed by Parliament in the International Copyright Order, 1991 as also its obligations under the TRIPS Agreement of the GATT.
Clause 11(4) be deleted altogether since its retention would be contrary to the purity of the Register and may facilitate trafficking in trade marks. A person who has registered earlier can also come forward with another registration, with some permission from the previous registered person.
Clause 17: The note on the clause states that it seeks to omit the provision relating to the requirement of disclaimer. The disclaimer clause should be specifically retained in the new law in the form in which it exists in the existing law.
Sir, I would like to go to the next clause: "Application for registration" in clause 18. I am quoting based on the judgement of the Supreme Court...(Interruptions).
MR. CHAIRMAN : Shri Natchippan, you are reading the whole speech.
SHRI E.M. SUDARSANA NATCHIAPPAN : No, Sir. I am just reading the judgments alone.
MR. CHAIRMAN: You can quote from quotations. But you are reading the whole speech.
SHRI E.M. SUDARSANA NATCHIAPPAN : I am quoting a particular judgement in the DRISTAN case.
"It was also submitted by Dr. Gauri Shankar, learned Counsel for the First Respondent that the Appellant was not entitled to retain the trade mark DRISTAN on the register because it had obtained its registration by making a false statement in its application for registration in as much as it had not stated in the said application that the said trade mark was proposed to be used by a registered user but instead stated that it was to be used by the Appellant who claimed to be the proprietor thereof. This point was not raised at any time before the Registrar or the High Court and it is not open to the First Respondent to take this point for the first time in this Appeal by certificate. Apart from that, there is no substance in this point, Form TM-1 appended to the Trade and Merchandise Marks Rules, 1959, does not contain any column similar to the column in the new Form TM-2 appended to the English Trade Marks Rule, 1938."
I would like to submit that provision 115(4) is about giving the dual role to the Magistrate. When they have got the complaint, then that should not be referred to the Registrar. They have to got the permission from the Registrar. That will make a lot of delay in confiscating the contraband. Therefore, getting a reference from the Registrar will make the actual accused to escape from the clutches of the law. Therefore, that provision should not be there. The Registrar can be enquired into whether that particular violation is there or not.
Sir, finally, I would like to submit one thing regarding the Appellate Tribunal. This is very important. It is really the need of the hour. But the selection of the members is more important. The more importance should be given for the retired High Court Judges or Indian Law service people. Therefore, we should give more importance for the clause 4(b) in respect of the practising lawyers who have got ten years experience. A provision is already made.
But those type of persons should be given more chances so that they can come with fresh knowledge which is of the international level because the Appellate Tribunal is going to have powers of the High Court. Therefore, they are going to decide the work of the High Court. The power of the High Court is going to be taken away by the Tribunal. Therefore, the Tribunal should not be manned only by retired people, but people who are in the service, a High Court judge or a person who has practised as a lawyer and having some expertise should also be allowed so that he can give interpretation in a proper way. That will be helpful for the subordinate services also to explain the law in a proper way, to the level of international expectation.
With these observations, I thank you very much.
DR. B.B. RAMAIAH (ELURU): Thank you very much Mr. Chairman, for giving me the opportunity to speak.
The hon. Minister has put up this Bill, which is already four decades old. It is as old as 1958. He has not made any changes or modifications in it. When the Bill came up for the first time in 1993, it was referred to the Standing Committee for Industry. Some suggestions were given by the Committee and the Report was presented to the House on 21st April, 1994. All the recommendations of the Committee have been accepted. The Bill that has come up even today is a part of the main object. Except for a few changes which have been made by the Law Ministry, this Bill is more or less on the same lines.
The Trade Marks Bill is very essential in the present circumstances and it had to be implemented much earlier. We know that there is a lot of delay in registration and other things and the present rate at which it is growing, we need to improve and develop the system with computerisation and various other requirements that we are looking for. I know that some of the hon. Members have made it that the WTO is responsible for some of these things, including probably the next Bill - Geographic Indications of Goods (Registration and Protection) Bill - which is coming up. Whatever it is, today the situation has completely changed than what it was about 10 or 15 years back. Some of the Members have also made it that the people who opposed it earlier are now supporting it in the present conditions. The changes are going on very fast and the circumstances must have made it more fast.
The WTO has made a lot of provisions due to which we have to live up to the world conditions and there is a lot of opposition to the WTO. However, there are a number of countries which are waiting to get into the WTO. Today, there may be 138 countries in the WTO, but at least 40 or 50 countries are looking forward to join it, including China, Russia and so many other countries. There are a lot of advantages of joining WTO and we need the world trade to be developed. When we are exposed so much to the world trade, we need to protect that part of our culture and our products in this country. That is the area where we have to see that the trade marks law should be improved. Not only trade marks, what we are talking of, geographical identification of our both plant-based and animal-based and various other circumstances has to be protected by this law.