“It is the spirit and not the form of law that keeps the justice alive” – LJ Earl Warren

Private Judging is a dispute resolution process between two or more parties through an independent third person; mainly a retired or former judge who is expertise in the area of dispute hears the case and analyzes the evidence and resolve the matter out of the court. This is an alternative dispute resolution (ADR) method which is prevailing in India for a very long time in the form of Puga, Sreni, Kula, and also in Panchayats. This method is generally used for settling civil disputes which ensures practical, inexpensive, flexible, and speedy resolution of disputes in accordance with the parties.

There are some types of alternative dispute resolution like Arbitration, Conciliation, Mediation, negotiation, Lok Adalat, online dispute resolution in which some of them are practiced in India effectively because of the huge pendency of cases in the court and some of them are not. On the other hand, there are also some loopholes in some of the alternative dispute resolution methods in India.

Modes and Practices of ADR in India

• Arbitration
• Conciliation
• Mediation
• Negotiation

Arbitration

 According to section 2(a) of Arbitration and Conciliation Act, 1996 “Arbitration means any arbitration whether or not administered by permanent Arbitral institution”.

 Arbitration is a useful compliment to the judicial process which offers an alternative forum to the time consuming and expensive court proceedings and resolves the dispute with the consensus of the parties. It is a dispute resolution method in which the parties keep away from the court measures and as an alternative decide to resolve their dispute through appointing a third person, who is known as an arbitrator. All matters relating to private rights and obligations which civil court may take cognizance of (sec 9 of civil procedure court, 1908) may refer to arbitration like damages in case of breach of contract, validity of marriage, maintenance, separation between husband and wife etc. Indian law with the introduction of the Arbitration and conciliation Act, 1996 that came into force with effect from 25^th January, 1996 is now trending the path walked upon by other developed nations.

In Guru Nanak Foundation v. Rattan Singh and Sons, the court stated that the court procedures are interminable, time consuming, complex, and expensive which impelled jurists to search for an alternative forum which are less formal, more effective, and speedy for resolution of disputes.

The reason due to which it is more preferable is because of its some of the advantages like avoidance of publicity, simplicity of procedure, Avoidance of delay, Reduction of expenses, savings of time etc.

Conversely, there are also certain challenges where the arbitration lacks in providing proper arbitral awards and claims. Along with some advantages, it also has loopholes along with it.

However, the way in which the proceedings under the Act are conducted and without exception challenged in Courts, has made Lawyers laugh and legal philosophers weep…Informal Forum chosen by the parties for expeditious disposal of their disputes has by the decisions of the Court been clothed with ‘legalese’ of unforeseeable complexity.” Stated by Justice DA Desai in Guru Nanak Foundation v. Rattan Singh and Sons,

·         The arbitrator may act sometimes incompetent or biased in some cases.

·         The procedure is informal which results to injustice to the parties.

·         If it is made mandatory by the parties entering into contact that the dispute is resolved through arbitration, then their right to approach the court is waived.

·         Arbitration does not provide for the grant of interlocutory applications.

·         Arbitration awards are not directly enforceable. They are executable subject to judicial approval.

·         Lack of domain expert.

Conciliation

Like Arbitration the word “Conciliation” is not defined in the Act. As compared to the court system Arbitration is considered private but Conciliation is mote private than Arbitration. In Conciliation proceedings the parties have the privilege to negotiate and arrive at a harmonious settlement.

Conciliation is an informal method during which the third party (Conciliator) tries to bring the disputants to the agreement. The party presents their case to neutral judge i.e. the conciliator who assists in settlement, which is normally satisfactory to the disputing parties as it is coming from neutral sources. The conciliator is not an arbitrator and is not bound by law in order to do, what he thinks just and reasonable. This is an accepted method of resolving difference and disputes across the developed world.

·         The method of conciliation is not binding upon the parties to the dispute.

·         There is no avenue for appeal.

·         The parties may not come to an end.

·         Procedure is so informal that the parties will not take it seriously.

Mediation

Mediation is a method by which a third party persuades the other disagreeing parties to hear one another in order to find a common area of agreement, thus enabling the parties to reach a mutually agreed outcome.

·         Since the decision is at the discretion of the parties, there is the possibility that a settlement between the parties may not arise.

·         It lacks the support of any judicial authority in its conduct.

·         Mediation proceedings are lacking in any procedural formality since they are not based on any legal principle.

·         The truth of an issue may not be revealed.

Negotiation

Negotiation is a dialogue proposed to resolve disputes, to produce an agreement upon courses of action, to bargain for individual or collective advantage, or to craft outcomes to satisfy various interests. It is the principal technique of alternative dispute resolution.

·         The parties to the dispute may not come to the settlement.

·         Lack of legal protection of the parties to the conflict.

·         Imbalance of power between the parties is possible in negotiation.

 Conclusion

Private judging in the form of some of the Alternative Dispute Resolution is present in India from the past times in which Arbitration and Conciliation Act, 1996 is made with not a satisfying provisions in India which is also amended in 2018 but still is not satisfactory and not capable enough to run in an efficient manner to resolve all the disputes because of many reasons like its informal procedure, or lack of expert domain. Even now days the Arbitrators demand a high price for their expertise which is not possible for the small companies to resolve it through arbitration. Even the method of Mediation and negotiation does not govern in India through any Act. There is also many loopholes in all these private judging method. Therefore, I think there is a need for better provision to be made in India for making India an Arbitration Hub and there is lots to do for the efficient working of private judging in India. Also, there is a need of private judging because of the pendency of cases in judicial system of India and it will work in India until and unless better provision to be made.

References

https://blog.ipleaders.in/arbitration-mediation-and-conciliation-different/

https://www.lawctopus.com/academike/arbitration-adr-in-india

https://www.iosrjournals.org/iosr-jhss/papers/Vol4-issue3/A0430107.pdf

https://www.barandbench.com/columns/50-landmark-decisions-on-arbitration-law-in-india-2018-2019-part-i

https://www.scribd.com/document/439923162/Business-Law-NMIMS-doc

http://www.legalservicesindia.com/article/245/Negotiation-Mode-Of-Alternative-Dispute-Resolution.html

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Industrial property legislation is part of the wider body of law known as intellectual property (IP) which refers broadly to the creations of the human mind. IP rights gave the protection to interests of innovators and creators by giving those rights for their creations.

The Convention Establishing the World Intellectual Property Organization (1967) does not inquire about to define IP, but lists the following as protected by IP rights:

·         literary, artistic and scientific works;

·         performances of performing artists, phonograph and broadcasts;

·         inventions in all fields of human endeavor;

·         scientific discoveries;

·         industrial designs;

·         trademarks, service marks, and commercial names and designations;

·         protection against unfair competition; and

·         “All other rights resulting from intellectual action in the industrial, scientific, literary or artistic fields”.

The significance of protection of Intellectual property was first acknowledged in the Paris Convention for the Protection of Industrial Property (1883) (Paris Convention) and the Berne Con­vention for the Protection of Literary and Artistic Works (1886) (Berne Convention). Mutually both the treaties are administered by the World Intellectual Property Organization (WIPO).

The Role of WIPO

WIPO is an international organization devoted to promoting creativity and innovation by ensuring that the rights of creators and owners of IP are protected worldwide, and that inventors and authors are recognized and rewarded for their creativity. As a expert agency of the United Nations, WIPO provides a discussion for its member states to make and harmonize rules and practices for protecting IP rights. Nearly all developed countries have protection systems that are centuries old, while developing countries maintain to create legal and administrative frameworks to protect their patents, trademarks, designs and copyright. WIPO assists its member states in developing these new systems through treaty negotiation, legal and technical assistance, and training in various forms, including in the area of enforcement of IP rights.

The countries usually have laws to protect IP for two main reasons:

·         Firstly, provide statutory expression to the rights of creators and innovators in their creations and innovations, bal­anced against the public interest in accessing creations and innovations;

·         Secondly to promote creativity and innovation, which helps to contribute in economic and social growth[1]

The Two Branches of Intellectual Property is generally divided into two branches, namely;  

·         Copyright: Copyright relates to inventive creations, such as poems, novels, music, paintings, and cinematographic works.

·         Industrial Property:  The wide term “industrial” is clearly lays down in the Paris Convention for the Protection of Industrial Property (Article 1 (3)): “Industrial property shall be understood in the widest sense and shall apply not only to industry and commerce proper, but similarly to agricultural and extractive Industrial and to all fabricated or natural products, for example, wines, grain, tobacco leaf, fruit, cattle, minerals, mineral waters, beer, flowers, and flour.”

Industrial property can be categorized into two major areas:

a)      The first one is the protection of distinctive signs, in particular trademarks and geographical indications.

b)      Secondly the other kinds of industrial property are protected mainly to stimulate innovation, design and the creation of technology. This group fall inventions (protected by patents), industrial designs and trade secrets.[2]

Patent

A patent is a personal right granted for an invention – a product or method that provides a new way of doing something, or that offers a new technical key to a problem. A patent provides patent owners with safety for their inventions. Protection is generally granted for a limited period of usually 20 years.

What kind of protection do patents offer?

Patent protection means an invention cannot be commercially made, used, distributed or sold without the consent of the owner. Patent rights are generally enforced in courts that, in most systems, hold the power to stop patent infringement. On the contrary, a court can also declare a patent invalid upon a successful challenge by a third party.

What rights do patent owners have?

A patent owner has the right to make a decision that who may or may not use the patented invention for the period during which it is protected. Patent owners may give consent to, or license, other parties to use their inventions on mutually approved terms.  The owners also have the right to sell their invention rights to someone else, who afterward becomes the new owner of the patent. When a patent expires, protection ends and the invention enter the public domain. This is also known as patent making, now the owner will no longer holds exclusive rights to the invention, and it becomes accessible for commercial exploitation by others. [3]

History of the Patent

1856 – The Act VI of 1856 on the protection of inventions based on the British Patent Law of 1852.  The inventors of the new manufacturers have certainly been given special privileges for a period of 14 years.

1859 – The Act then amended as act XV Patent monopolies called special privileges.

1872 – The Patterns & Designs Protection Act.

1883 – The Protection of Inventions Act.

1888 – Combined as the Inventions & Designs Act.

1911 – The Indian Patents & Designs Act.

1999 – On March 26, 1999 Patents (Amendment) Act, (1999) came into force from 1st January 1995.

2002 – The Patents (Amendment) Act 2002 came into power from 20th may 2003

2005 – The Patents (Amendment) Act 2005 efficient from 1st January 2005[4]

In Bajaj Auto Limited vs. TVS Motor Company Limited, there is a dispute for patent of the use of twin-spark plug engine technology. In this case Supreme Court has given a landmark judgment in which it directs all the courts for fast disposal of Intellectual property rights cases.[5]

Not all inventions are patentable. Laws require that a creation fulfill the following conditions, known as the requirements or conditions of patentability:

·         Industrial Applicability – The invention must be of realistic use, or competent of some kind of industrial application.

·         Novelty – It must give you an idea about some new quality that is not known in the body of existing knowledge in its technical field.

·         Inventive step – It must show a creative step that could not be deduced by a person with common knowledge of the technical field.

·         Patentable subject matter – The creation must fall within the extent of patentable subject matter as defined by national law. This differs from one country to another. Several countries prohibit from patentability such issue of scientific theories, mathematical methods, plant or animal varieties, discoveries of natural substances, methods for medical treatment, and any innovation where prevention of its commercial exploitation is needed to safeguard public order, good morals or public health.[6]

Trademark

Brief background

In 1940, the Trade Marks Registry was established in India and presently it regulates the Trade Marks Act, 1999 and the rules there under. It acts as a resource and information center and is promoters in matters relating to trade marks in the country. The purpose of the Trade Marks Act, 1999 is to register trademarks applied for in the country and to provide for better protection of trade mark for goods and services as well as to avoid deceptive use of the mark. The main function of the Registry is to register trademarks which meet the requirements for registration under the Act and Rules.[7]

What is a trademark?

 A trademark is a unique sign that identifies certain goods or services formed or provided by an individual or a company. Its origin dates back to ancient times when craftsmen reproduced their signatures, or “marks”, on their creative works or products of a practical or realistic nature. Over the years, these marks have developed into today’s system of trademark registration and protection. This system helps consumers to identify and purchase a product or service based on its specific characteristics and quality as indicated by its unique trademark to meet their needs.

What do trademarks do?

Trademark protection guaranteed that the owners of marks have the special right to use them to recognize goods or services, or give consent to others to use them in return for payment. The time of protection varies, but a trademark can be renewed for an indefinite period upon payment of the consequent fees. Trademark protection is legally enforced by courts, which is the right to prevent trademark infringement in most systems.

In Clinique laboratories LLC and Anr. Vs. GuficLimited and Anr., in this case court held that a suit for breach of registered trademark is maintainable against another registered proprietor of identical or similar trade mark.[8]

The Coca-Cola Company Vs. Bisleri International Pvt. Ltd, in this case the Court held that the intention to use trademark and direct or indirect use of the trade mark was enough to give jurisdiction to the court to decide on the issue. The court temporarily banned the defendant (Bisleri) to use MAAZA as a trade mark in India as well as to export in market.[9]

What kinds of trademarks can be registered?

Trademarks are a combination of words, letters and numerals. It may consist of drawings, symbols or three-dimensional signs, such as the shape and packaging of goods. In some countries, non-traditional marks may be registered for characteristic features such as holograms, motion, color and non-visible signs such as sound, smell or taste.

How is a trademark registered?

There should be an application for registration of a trademark that must be filed with the appropriate national or regional trademark office. The application must have a clear copy of the sign filed for registration, together with any colors, forms or three-dimensional features. It must also include a list of the goods or services to which the sign would apply. The sign must fulfill necessary conditions in order to be protected as a trademark or other type of mark. It must be unique, so that consumers can differentiate it from trademarks identifying other products, while identify a particular product with it. It must neither misguide or cheat customers nor infringe public order or morality. Finally, the rights applied for cannot be the same as the rights already granted to another trademark owner. This may be determined during search and check by national offices, or by the opposition of third parties who argue to have similar or identical rights.

How extensive is trademark protection?

The countries in the world have the right to register and protect trademarks. The national or district office of the concerned place maintains a Register of Trademarks containing full application information on all registrations and renewals, which further examination, search and potential opposition by third parties. However the effects of the registration are limited to the country (or, in the case of regional registration, countries) concerned. WIPO regulate an international registration system for trademarks which is governed by two treaties first one is the Madrid Agreement Concerning the International Registration of Marks and second one is the Madrid Protocol to avoid the necessity to register separate applications with each national  regional office of the concerned place. Persons with a connection to a country party to one or both of these treaties may, on the basis of a registration or application with the trademark office of that country or connected region, obtain an international registration having effect in some or all of the other countries of the Madrid Union.

Trade Names

This type of industrial property includes commercial names and designations that identify a company. In the majority of countries, trade names are registered with a government authority. According to the article 8 of the Paris Convention, a trade name must be protected without the compulsion of filing or registration, whether or not it forms element of a trademark. Protection usually means that the trade name of one company cannot be used by other company as a trade name or trade service mark and in case the company will try to misguide the people then they also cannot use the name similar to trade name.

Design

In India the registration and protection of industrial designs is regulated by the Designs Act, 2000 and subsequent Designs Rules, 2001 which came into power on 11th May 2001 repealing the earlier Act of 1911, which was further amended by Designs (Amendment) Rules 2008 and Designs (Amendment) Rules 2014. The last amendment in Designs Rules came in to power from 30th December, 2014, which incorporates a new kind of applicant as small body besides natural person and apart from small entity.

The industrial design generally acknowledged the creation of new and authentic features of new shape, configuration, surface pattern, ornamentation and constitution of lines or colors applied to articles which in the completed state appeal to and is judged only by the eye.[10]

Industrial Designs

Industrial designs are useful to a ample variety of industrial products and handicrafts. They refer to the ornamental or artistic side of an article, as well as compositions of lines or colors or any three-dimensional forms that give a unique look to a product or handicraft. The design must have artistic appeal. Furthermore, it must be able to be reproduced by industrial means; this is the fundamental purpose of the design and that is reason the design is called “industrial”. In a legal sense, an industrial design is the right approved in many countries, conforming to a registration system, to protect the creative, ornamental and nonfunctional features of a product resulting from design activity.

Why protect industrial designs?

When an industrial design is protected, the owner, the person or body that has registered the design is guaranteed a special right and protection against illegal copying or imitation of the design by third parties. This helps to make certain a fair return on investment. A competent system of protection also profit the consumers and the community at large, by promoting fair competition and direct trade practices, encouraging creativity and promoting more elegant products.

How can industrial designs be protected?

In most countries, an industrial design must be registered to be protected under industrial design law. Since the rule, for the registration, the design must be “new” or “original”. Countries have different definitions of such terms and also variations in the registration process. Generally, “new” means that no identical or very similar design already exists. When a design is registered, a registration certificate is issued. Subsequently the period of protection of protection granted is usually five years, with the possibility of renewal, in most cases for a period of up to 15 years.

Geographical Indication

The Parliament had passed the Geographical Indications of Goods (Registration and Protection) Act, in December 1999. This Act provides for the registration and better protection of geographical indications relating to goods in India. The Act would be regulated by the Controller General of Patents, Designs and Trade Marks.[11]

A geographical indication is a sign used on goods that have a particular geographical origin and have qualities or a reputation that are due to that place of origin. Agricultural products generally have attribute that derive from their place of production and are influenced by particular local factors, such as climate and soil. Geographical indications can be used for many agricultural products, such as “Tuscany” for olive oil produced in a particular area of Italy, or “Roquefort” for cheese produced in a certain region of France.

An appellation of origin is a particular kind of geographical indication, used on products that have a definite quality that is wholly or fundamentally due to the geographical environment in which the products are produced. The concept of geographical indication circumscribed appellations of origin. There are some examples of appellations of origin which are preserved in states party to the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration include “Habana” for tobacco grown in the Havana region of Cuba, or “Tequila” for spirits produced in specific areas of Mexico.

Geographical indications are generally protected by national laws in a broad range of concepts, such as laws against unfair competition, consumer protection laws, laws for the protection of certification marks or particular laws for the fortification of geographical indications or appellations of origin. Unauthorized parties cannot use geographical indications if such use is likely to misguide the people as to the factual origin of the product. Appropriate sanctions range from court injunctions preventing the unauthorized use, to the payment of damages and fines or, in serious cases, imprisonment.[12]

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