Sunday, 8 November 2020

Module IV - Sale of Goods Act 1930

4. The Sale Of Goods Act - 1930
Contract of Sale (S.2) – Concept, Essentials elements of contract of sale, Distinction between Sale and Agreement to sell (S.4) Distinguish between Sale and Hire Purchase Agreement, Types of Goods. Effects of Destruction of Goods (Ss. 6,7.8)
Conditions & Warranties (Ss. 11-25 & 62, 63) – Concept, Distinguish between Conditions and Warranties, Implied Conditions & Warranties, Concept of Doctrine of Caveat Emptor – Exceptions.
Property – Concept, Rules of transfer of property (Ss. 18-26)
Unpaid Seller (Ss. 45-54, 55 & 56) - Concept, Rights of an unpaid seller, Remedies for Breach of contract of Sale (Ss. 55-61),Auction sale – Concept, Legal Provisions. (S. 64)

Contract of Sale (S.2) – Concept, Essentials elements of contract of sale.

Section 4(1) defines sale as : "A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price."

Essential features of sale :

1. Bilateral contract.

2. Money consideration.

3. transfer of only movable goods.

4. Transfer of general property.

5. No particular form.

6. Absolute or conditional.

Distinction between Sale and Agreement to Sale

Section 4(3) lays down : "Where under a contract of sale , the property in goods is transferred from the seller to the buyer, the contract is called sale, but where the transfer of property in the goods is to take place at a future time, or subject to some conditions to be fullfilled, the contract is called agreement to sale.

1. Executed and Executory Contract.

2. Agreement plus conveyance or no conveyance.

3. Actual transfer of property in goods.

4. Passing of risk in the goods to the buyer.

5. Remedy against seller.

6. Remedy against buyer.

7. Right in rem and personam.

8. Risk of destruction of goods.

9. In case of insolvency of seller.

10. In case of Insolvency of buyer

Distinguish Between Sale and Hire Purchase Agreement

1. Transfer of Ownership.

Transferred - After fixed instalments

2. Option to return goods to the seller.

3. Position of Buyer and Hire Purchaser

Full owner - Bailee

4. Appropriation of instalments.

Price of the goods - Hire charges, till the option to purchase is exercised

5. Can seller get back the goods.

6. Governed by what Act ?

Types of Goods

Existing Goods Future Goods Contingent Goods

Specific Goods

Ascertained Goods

Unascertained Goods

EFFECT OF DESTRUCTION OF GOODS

1. Effect of perishing of goods before making the contract (S-7)

2. Effect of goods perishing before sale but after agreement to sale (S-8)

CONDITION [Section 12(2)]

A condition is a stipulation, essential to the main purpose of the contract, the breach of which gives right to treat the contract as repudiated.

WARRANTY [Section 12(3)]

A warranty is a stipulation collateral to the main purpose of the contract, the breach of which gives right to claim for damages, but not a right to reject the goods and treat the contract as repudiated.

Distinction between condition and warranty :

1. Essential or collateral contract.

2. Nature of remedy.

Collateral : situated side by side; parallel.

Stipulation : a condition or requirement that is specified or demanded as part of an agreement.

IMPLIED CONDITIONS :

1. Implied condition as to title [S.149(a)]

2. Implied condition as to sale by description [S.15]

3. Implied condition as to sale by sample.

4. Implied condition as to sale by description as well as by sample. [S.15]

5. Implied condition as to quality and fitness for buyers purpose [S.16]

6. Implied condition as to merchantable quality [S.16(2)]

7. An implied condition as to wholesomeness.

8. Condition implied by Trade Usage [S. 16(3)]

IMPLIED WARRANTIES

1. Implied Warranty of Quiet and peaceful possession. [S. 14 (b)]

2. Implied Warranty of freedom from encumbrances. [S. 14 (C)]

encumbrance : law. a mortgage or other claim on property or assets.

DOCTRINE OF CAVEAT EMPTOR

"The person who buys the goods must keep his eyes open, his mind active and cautious while buying the goods"

Exemptions :

1. Fitness for buyers purpose [S.16(1)]

2. Sale under Trade Name [S. 16(1)]

3. Merchantable Quality [S. 16 (2)]

4. Trade Usage [S.16 (3)]

5.Consent by fraud.

PROPERTY - CONCEPT, RULES OF TRANSFER OF PROPERTY

2.(11) “property” means the general property in goods, and not merely a special property;

2 (7) “goods” means every kind of movable property other than actionable claims and money; and includes stock and shares, growing crops, grass, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale;

RULES OF TRANSFER OF PROPERTY

18. Goods must be ascertained.—

Where there is a contract for the sale of unascertained goods, no property in the goods is transferred to the buyer unless and until the goods are ascertained.

19. Property passes when intended to pass.—

(1) Where there is a contract for the sale of specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred.

(2) For the purpose of ascertaining the intention of the parties regard shall be had to the terms of the contract, the conduct of the parties and the circumstances of the case.

(3) Unless a different intention appears, the rules contained in sections 20 to 24 are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer.

20. Specific goods in a deliverable state.—Where there is an unconditional contract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment of the price or the time of delivery of the goods, or both, is postponed.

21. Specific goods to be put into a deliverable state.—Where there is a contract for the sale of specific goods and the seller is bound to do something to the goods for the purpose of putting them into a deliverable state, the property does not pass until such thing is done and the buyer has notice thereof.

22. Specific goods in a deliverable state, when the seller has to do anything thereto in order to ascertain price.—Where there is a contract for the sale of specific goods in a deliverable state, but the seller is bound to weigh, measure, test or do some other act or thing with reference to the goods for the purpose of ascertaining the price, the property does not pass until such act or thing is done and the buyer has notice thereof.

23. Sale of unascertained goods and appropriation.—

(1) Where there is a contract for the sale of unascertained or future goods by description and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer. Such assent may be express or implied, and may be given either before or after the appropriation is made.

(2) Delivery to carrier.—Where, in pursuance of the contract, the seller delivers the goods to the buyer or to a carrier or other bailee (whether named by the buyer or not) for the purpose of transmission to the buyer, and does not reserve the right of disposal, he is deemed to have unconditionally appropriated the goods to the contract.

24. Goods sent on approval or “on sale or return”.—When goods are delivered to the buyer on approval or “on sale or return” or other similar terms, the property therein passes to the buyer—

(a) when he signifies his approval or acceptance to the seller or does any other act adopting the transaction;

(b) if he does not signify his approval or acceptance to the seller but retains the goods without giving notice of rejection, then, if a time has been fixed for the return of the goods, on the expiration of such time, and, if no time has been fixed, on the expiration of a reasonable time.

25. Reservation of right of disposal.—

(1) Where there is a contract for the sale of specific goods or where goods are subsequently appropriated to the contract, the seller may, by the terms of the contract or appropriation, reserve the right of disposal of the goods until certain conditions are fulfilled. In such case, notwithstanding the delivery of the goods to a buyer, or to a carrier or other bailee for the purpose of transmission to the buyer, the property in the goods does not pass to the buyer until the conditions imposed by the seller are fulfilled. 1[(2) Where goods are shipped or delivered to a railway administration for carriage by railway and by the bill of lading or railway receipts, as the case may be, the goods are deliverable to the order of the seller or his agent, the seller is prima facie deemed to reserve the right of disposal.

(3) Where the seller of goods draws on the buyer for the price and transmits to the buyer the bill of exchange together with the bill of lading or, as the case may be, the railway receipt, to secure acceptance or payment of the bill of exchange, the buyer is bound to return the bill of lading or the railway receipt if he does not honour the bill of exchange; and, if he wrongfully retains the bill of lading or the railway receipt, the property in the goods does not pass to him. Explanation.—In this section, the expressions “railway” and “railway administra-tion” shall have the meanings respectively assigned to them under the 2Indian Railways Act, 1890 (9 of 1890).]

26. Risk prima facie passes with property.—Unless otherwise agreed, the goods remain at the seller’s risk until the property therein is transferred to the buyer, but when the property therein is transferred to the buyer, the goods are at the buyer’s risk whether delivery has been made or not: Provided that, where delivery has been delayed through the fault of either buyer or seller, the goods are at the risk of the party in fault as regards any loss which might not have occurred but for such fault: Provided also that nothing in this section shall affect the duties or liabilities of either seller or buyer as bailee of the goods of the other party.

(SOURCE : www.indiankanoon.com)

What does appropriation mean in law?

In law and government, appropriation (from Latin appropriare, "to make one's own", later "to set aside ") is the act of setting apart something for its application to a particular usage, to the exclusion of all other uses. It typically refers to the legislative designation of money for particular uses, in the context of a budget or spending bill.

Appropriation (law) - Wikipedia

en.wikipedia.org/wiki/Appropriation_(law)

UNPAID SELLER

Section 45 (1)

"The seller is deemed to be an unpaid seller when the whole of the price has not been paid or tendered or when a bill of exchange or other negotiable instrument has been received as conditional payment and condition on which it was received has not been fulfilled by reason of the dishonor of the instrument or otherwise."

RIGHTS OF AN UNPAID SELLER

I. Rights of an unpaid seller against the goods

a) Rights when the property (ownership) in the goods has passed to the buyer.

1. Right of Lien (S. 47 to 49)

2. The right of stoppage in transit. (S. 50)

3. The right of resale. (S. 54)

b) Rights when the property (ownership) in the goods has not passed to the buyer.

RIGHTS OF WITHHOLDING DELIVERY:
WHEN PROPERTY IN GOODS HAS NOT PASSED to the buyer,unpaid seller in addition to other remedies
has a right of withholding delivery similar coextensive with the right of lien

II. Right of an unpaid seller against the buyer personally.

a. Suit for price.(S. 55)

b. Suit for damages for non acceptance (S. 56)

c. Suit for repudiation of contract before due date (S. 60)

d. Suit for interest [S. 61(2) (a)]

REMEDIES FOR BREACH OF CONTRACT OF SALE (Ss. 55-61)

55. Suit for price.—

(1) Where under a contract of sale the property in the goods has passed to the buyer and the buyer wrongfully neglects or refuses to pay for the goods according to the terms of the contract, the seller may sue him for the price of the goods.

(2) Where under a contract of sale the price is payable on a day certain irrespective of delivery and the buyer wrongfully neglects or refuses to pay such price, the seller may sue him for the price although the property in the goods has not passed and the goods have not been appropriated to the contract.

56. Damages for non-acceptance.—Where the buyer wrongfully neglects or refuses to accept and pay for the goods, the seller may sue him for damages for non-acceptance.

57. Damages for non-delivery.—Where the seller wrongfully neglects or refuses to deliver the goods to the buyer, the buyer may sue the seller for damages for non-delivery.

58. Specific performance.—Subject to the provisions of Chapter II of the Specific Relief Act, 1877 (1 of 1877), in any suit for breach of contract to deliver specific or ascertained goods, the Court may, if it thinks fit, on the application of the plaintiff, by its decree direct that the contract shall be performed specifically, without giving the defendant the option of retaining the goods on payment of damages. The decree may be unconditional, or upon such terms and conditions as to damages, payment of the price, or otherwise, as the Court may deem just, and the application of the plaintiff may be made at any time before the decree.

59. Remedy for breach of warranty.—

(1) Where there is a breach of warranty by the seller, or where the buyer elects or is compelled to treat any breach of a condition on the part of the seller as a breach of warranty, the buyer is not by reason only of such breach of warranty entitled to reject the goods; but he may—

(a) set up against the seller the breach of warranty in diminution or extinction of the price; or

(b) sue the seller for damages for breach of warranty.

(2) The fact that a buyer has set up a breach of warranty in diminution or extinction of the price does not prevent him from suing for the same breach of warranty if he has suffered further damage.

60. Repudiation of contract before due date.—Where either party to a contract of sale repudiates the contract before the date of delivery, the other may either treat the contract as subsisting and wait till the date of delivery, or he may treat the contract as rescinded and sue for damages for the breach.

61. Interest by way of damages and special damages.—

(1) Nothing in this Act shall affect the right of the seller or the buyer to recover interest or special damages in any case where by law interest or special damages may be recoverable, or to recover the money paid where the consideration for the payment of it has failed.

(2) In the absence of a contract to the contrary, the court may award interest at such rate as it thinks fit on the amount of the price—

(a) to the seller in a suit by him for the amount of the price—from the date of the tender of the goods or from the date on which the price was payable;

(b) to the buyer in a suit by him for the refund of the price in a case of a breach of the contract on the part of the seller—from the date on which the payment was made.

AUCTION

64. Auction sale.—In the case of sale by auction—

1. where goods are put up for sale in lots, each lot is prima facie deemed to be the subject of a separate contract of sale;

2. the sale is complete when the auctioneer announces its completion by the fall of the hammer or in other customary manner; and, until such announcement is made, any bidder may retract his bid;

3. a right to bid may be reserved expressly by or on behalf of the seller and, where such right is expressly so reserved, but not otherwise, the seller or any one person on his behalf may, subject to the provisions hereinafter contained, bid at the auction;

4. where the sale is not notified to be subject to a right to bid on behalf of the seller, it shall not be lawful for the seller to bid himself or to employ any person to bid at such sale, or for the auctioneer knowingly to take any bid from the seller or any such person; and any sale contravening this rule may be treated as fraudulent by the buyer;

5. the sale may be notified to be subject to a reserved or upset price;

6. if the seller makes use of pretended bidding to raise the price, the sale is voidable at the option of the buyer.

Wednesday, 21 October 2020

Module III - Indian Contract Act 1872 - Part 3

Indian Contract Act 1872 - Part III

Law of Indemnity & Guarantee (Ss. 124-125, Ss. 126-129, 132-147) – Concept, Essentials elements of Indemnity and Guarantee, Contract of Indemnity vs. Guarantee, Modes of Discharge of Surety.
Law of Bailment (S. 148, 152-154, 162, 172, 178, 178A, 179) – Concept, Essentials of Bailment, Kinds of Bailment, Rights and Duties of Bailor and Bailee Law of Pledge – Concept, Essentials of valid Pledge, Lien - concept, Difference between Pledge and Lien, Rights of Pawnor & Pawnee. (Ss. 173, 174, 177)
Law of Agency (Ss. 182-185, 201-209) – Concept, Modes of creation of Agency, Modes of termination of Agency, Rights& Duties of Principal and Agent.

INDEMNITY :

Indemnity means to compensate or to make good the loss.

Sec. 124 - "A contract by which one party promises to save the other from loss caused to him by the conduct of the promisor himself, or by the conduct of any other person."

Indemnifier (promisor)

Indemnity holder (promisee)

ESSENTALS OF CONTRACT OF INDEMNITY :

1. Actual loss to promisee.

2. An Object or Consideration must be Lawful.

3. Definition is not complete and exhastive.

4. Indemnity may be express or implied.

GUARANTEE :

Section 126 : A contract of guarantee is a contract to perform the promise or to discharge the liability of third person in case of his default.

Guarantor

PRINCIPAL DEBTOR : The person against whose default guarantee is given is called the principal debtor.

Creditor

ESSENTIALS OF CONTRACT OF GUARANTEE :

1. Tripartite privity of contract

There are 3 contracts

2. Consideration for Guarantee.

3. primary and secondary liabilities.

4. Surety's distinct promise to be made liable.

5. No misrepresentation in the contract of Guarantee

6. Writing is not essential.

7. Liability must be legally enforceable..

8. Law as to bank guarantee

Aim is security of creditor.

DISTINCTION BETWEEN CONTRACT OF INDEMNITY AND CONTRACT OF GUARANTEE

1. Definition.

2. One or Three Contracts

3. Two or Three Parties.

4. Nature of Liability.

5. Aim of Contract.

6. Contingency.

7. Suit against third person.

CONTRACT OF BAILMENT

Section 148 : “A bailment is the delivery of goods from one person to another for some purpose , upon a contract, that they shall, when the purpose is accomplished, returned or otherwise disposed of according to the directions of the person delivering them.

Bailor – Bailee

Essentials of Contract of Bailment :

1. 1. Delivery of Goods from one person to another.

3. Actual or Constructive.

Kaliya Perumal

Vishalakshmi

2. Contract for accomplishment of some purpose

3. Return of specific goods to the bailor.

4. 4. Change of possession and not of ownership

5. 5. Bailment of only movable goods.

6. 6. Consideration.

Classification of Bailment :

1. Bailment for safe deposit.

2. Bailment for hire.

3. Commodatum Bailment.

4. Bailment by Pledge.

5. Bailment for Carriage.

6. Bailment for repairs.

On the basis of reward :

Gratuitous Bailment

Non Gratuitous Bailment

Duties and Liabilities of Bailor :

1. To disclose known faults.

2. To bear extraordinary expenses.

3. To receive back the goods.

4. To indemnify the Bailee in case of defective title.

5. To indemnify the Bailee for the Loss in case of premature termination of Gratuitous Bailment.

6. Give possession of goods to bailee.

Rights of Bailor :

1. Bailor’s right to enforce Bailee’s duties :

2. Bailor’s right to avoid contract :

3. Bailor’s right to demand return of Goods at any time in Gratuitous Bailment.

4. Bailor’s right to sue a wrongdoer.

5. Bailor’s right to have a share in compensation.

Bailee’s Duties and Liabilities :

1. To take reasonable care of the goods bailed.

2. Not to make unauthorized use of the goods.

3. To return the goods.

4. Bailee’s responsibility when goods are not duly returned.

5. Bailee is not responsible to re-delivery of goods to bailor without title.

6. Bailee’s duties not to mix the goods with his own goods.

Rights of Bailee

1. Delivery of Goods to one of the several joint bailors of goods.

2. Delivery of the goods to the bailor without title.

3. Right to apply to the court to stop delivery of the goods.

4. Bailee's Lien.

Pledge

Section 172 : The bailment of goods as a security for payment of debt or performance of promise is called pledge.

Pledger / Pawnor - Pledgee / Pawnee

Essentials of Pledge :

1. Bailment of goods as security.

2. Bailment of only movable goods.

3. Actual or constructive delivery of goods.

4. Juridicial or De Jury Possession of Goods.

Lien :

A lien may be defined as a right of a person to detain or retain the goods or property, already in possession, but belonging to another person, until some debt or claim of the goods is satisfied.

Difference between Pledge and Lien :

1. Security or Right to Retain.

2. Right to sell or retain the goods.

3. Creation by Law or Contract.

4. Possession

Rights of a Pawnee (Pledgee)

1. Pawnees right to retainer.

2. Pawnees right to retainer for subsequent advances.

3. Pawnee's right when Pawnor makes default.

Rights of a Pawnor (Pledgor)

1. Right to get back the goods.

2. Right to redeem the debt.

3. Preservation and Maintenance of goods.

4. Rights of an ordinary debtor.

CONTRACT OF AGENCY

Agent

Principal

Who can appoint an agent ?

Who can be an agent ?

Is consideration necessary to create an agency ?

MODES OF TERMINATION OF AGENCY

1. Termination of agency by act of the parties.

a. Agreement

b. Revocation by the principal.

c. Renouncing.

d. Completion of Performance.

Termination of agency by operation of Law

a. Death

b. Insolvency

c. Insanity.

Other Modes of Termination.

a. Destruction of subject matter

b. Principal becoming an alien enemy.

c. Dissolution of Company

d. Termination of sub - agents authority.

e. Expiry of time.

AGENT'S DUTIES TO HIS PRINCIPAL

1. Agents duties to conduct the principal's business as per his directions.(S. 211)

2. To conduct business with skill and diligence. (S. 212)

3. To render accounts to his principal (S. 213)

4. To communicate with the principal in case of difficulty. (S. 214)

5. Not to deal on his own accounts without principal's consent. ( S. 215 & S. 216)

6. Agents duty to pay sums received for principal. ( S. 217 - S. 218)

7. To protect and preserve the interest of the principal ( S. 209)

8. Not to make secret profits.

9. Not to use information against the principal.

10. Not to set up adverse title.

11. Not to delegate authority.

Principle's duties to his agents.

1. To indemnify the agent against consequences of all the lawful act. (S. 222)

2. To indemnify the agent against consequences of acts done in good faith (Section 223)

3. Principal not liable for criminal acts of the agent. (S. 224)

4. To compensate the agent for injury caused by principal's neglect. (S. 225)

5. Principal's duty to pay the agreed commission.

Friday, 3 April 2020

IPR relating to Trademarks –

Concept, Functions of Trade Mark, types, trademarks that cannot be registered, Registration of Trade Marks and rights of the proprietor of Trade Marks. Procedure for registration of Trade Marks., Infringement of Trademarks & Remedies.

CONCEPT

2.(1) (zb) "trade mark" means a mark capable of being

represented graphically and

which is capable of distinguishing the goods or services of one person from those of others and

may include shape of goods,

their packaging and

combination of colors , and

in relation to Chapter XII (other than section 107), a registered trade mark or mark used in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services, as the case may be, and some person having the right as proprietor to use the mark, and in relation to other provisions of this Act, a mark used or proposed to be used in relation to goods or services for the purpose of indicating or so to indicate to a connection in the course of trade between the goods or services, as the case may be, and some person having the right, either as proprietor or by way of permitted user, to use the mark whether with or without any indication of the identity of that person, and includes a certification trade mark or collective mark.

FUNCTIONS OF TRADE MARK

A trademark serves the purpose of identifying the source or the origin of goods. Trademark performs the following four functions.

It identifies the product and it’s origin.
It proposes to guarantee its quality.
It advertises the product. The trademark represents the product.
It creates an image of the product in the minds of the public particularly the consumers or the prospective consumers of such goods.

functions.php?Title=Trademark&STitle=Functions%20of%20a%20Trademark

TYPES

1. Section 2.(1)(c) "associated trade Marks" means trade marks deemed to be, or required to be, registered as associated trade marks under this Act;

2. Section 2.(1) (e) "certification trade mark" means a mark capable of distinguishing the goods or service in connection with which it is used in the course of trade which are certified by the proprietor of the mark in respect of origin, material, mode of manufacture of goods or performance of service not so certified and registrable as such under Chapter IX in respect of those goods or service in the name, as proprietor of the certification trade mark , of that person;

3. Section 2.(1) (g) "collective mark" means a trade mark distinguishing the goods or services of members of an association of persons (not being a partnership within the meaning of the Indian Partnership Act, 1932 (9 of 1932) which is the proprietor of the mark from those of others.

4. Section 2.(1) (zg) "well-known trade mark" in relation to any goods or service, means a mark which has becomes so to the substantial segment of the public which uses such goods or receives such services that the use of such mark in relation to other goods or services would be likely to be taken as indicating a connection in the course of trade or rendering of services between those goods or services and a person using the mark in relation to the first mentioned goods or services.

5. Section 24. Jointly owned trade marks.-

(1) Save as provided in sub-section (2), nothing in this Act shall authorize the registration of two or more persons who use a trade mark independently, or propose so to use it, as joint proprietors thereof.

(2) Where the relations between two or more persons interested in a trade mark are such that no one of them is entitled as between himself and the other or others of them to use it except-

(a) on behalf of both or all of them, or

(b) in relation to an article or service with which both or all of them are connected in the course of trade.

Those persons may be registered as joint proprietors of the trade mark, and this Act shall have effect in relation to any rights to the use of the trade mark vested in those persons as if those rights had been vested in a single person.

6. SERVICE MARKS

7. SOUND TRADEMARKS

8. SHAPE TRADEMARK

Trademarks that cannot be registered

Section 9 - Absolute grounds for refusal of registration
(1) The trade marks--
(a) which are devoid of any distinctive character, that is to say, not capable of distinguishing the goods or services of one person from those of another person;
(b) which consist exclusively of marks or indications which may serve in trade to designate the kind, quality, quantity, intended purpose, values, geographical origin or the time of production of the goods or rendering of the service or other characteristics of the goods or service;
(c) which consist exclusively of marks or indications which have become customary in the current language or in the bona fide and established practices of the trade, shall not be registered:
Provided that a trade mark shall not be refused registration if before the date of application for registration it has acquired a distinctive character as a result of the use made of it or is a well-known trade mark.
(2) A mark shall not be registered as a trade mark if--
(a) it is of such nature as to deceive the public or cause confusion;
(b) it contains or comprises of any matter likely to hurt the religious susceptibilities of any class or section of the citizens of India;
(c) it comprises or contains scandalous or obscene matter;
(d) its use is prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950 (12 of 1950).
(3) A mark shall not be registered as a trade mark if it consists exclusively of--
(a) the shape of goods which results from the nature of the goods themselves; or
(b) the shape of goods which is necessary to obtain a technical result; or
(c) the shape which gives substantial value to the goods.
Explanation.--For the purposes of this section, the nature of goods or services in relation to which the trade mark is used or proposed to be used shall not be a ground for refusal of registration.

Section 11 - Relative grounds for refusal of registration.

(1) Save as provided in section 12, a trade mark shall not be registered if, because of--
(a) its identity with an earlier trade mark and similarity of goods or services covered by the trade mark; or
(b) its similarity to an earlier trade mark and the identity or similarity of the goods or services covered by the trade mark, there exists a likelihood of confusion on the part of the public, which includes the likelihood of association with the earlier trade mark.
(2) A trade mark which--
(a) is identical with or similar to an earlier trade mark; and
(b) is to be registered for goods or services which are not similar to those for which the earlier trade mark is registered in the name of a different proprietor, shall not be registered if or to the extent the earlier trade mark is a well-known trade mark in India and the use of the later mark without due cause would take unfair advantage of or be detrimental to the distinctive character or repute of the earlier trade mark.
(3) A trade mark shall not be registered if, or to the extent that, its use in India is liable to be prevented--
(a) by virtue of any law in particular the law of passing off protecting an unregistered trade mark used in the course of trade; or
(b) by virtue of law of copyright.
(4) Nothing in this section shall prevent the registration of a trade mark where the proprietor of the earlier trade mark or other earlier right consents to the registration, and in such case the Registrar may register the mark under special circumstances under section 12.
Explanation.For the purposes of this section, earlier trade mark means--
1[(a) a registered trade mark or an application under section 18 bearing an earlier date of filing or an international registration referred to in section 36E or convention application referred to in section 154 which has a date of application earlier than that of the trade mark in question, taking account, where appropriate, of the priorities claimed in respect of the trade marks;]
(b) a trade mark which, on the date of the application for registration of the trade mark in question, or where appropriate, of the priority claimed in respect of the application, was entitled to protection as a well-known trade mark.
(5) A trade mark shall not be refused registration on the grounds specified in sub-sections (2) and (3), unless objection on any one or more of those grounds is raised in opposition proceedings by the proprietor of the earlier trade mark.
(6) The Registrar shall, while determining whether a trade mark is a well-known trade mark, take into account any fact which he considers relevant for determining a trade mark as a well-known trade mark including--
(i) the knowledge or recognition of that trade mark in the relevant section of the public including knowledge in India obtained as a result of promotion of the trade mark;
(ii) the duration, extent and geographical area of any use of that trade mark;
(iii) the duration, extent and geographical area of any promotion of the trade mark, including advertising or publicity and presentation, at fairs or exhibition of the goods or services to which the trade mark applies;
(iv) the duration and geographical area of any registration of or any application for registration of that trade mark under this Act to the extent that they reflect the use or recognition of the trade mark;
(v) the record of successful enforcement of the rights in that trade mark, in particular the extent to which the trade mark has been recognised as a well-known trade mark by any court or Registrar under that record.
(7) The Registrar shall, while determining as to whether a trade mark is known or recognised in a relevant section of the public for the purposes of sub-section (6), take into account--
(i) the number of actual or potential consumers of the goods or services;
(ii) the number of persons involved in the channels of distribution of the goods or services;
(iii) the business circles dealing with the goods or services, to which that trade mark applies.
(8) Where a trade mark has been determined to be well known in at least one relevant section of the public in India by any court or Registrar, the Registrar shall consider that trade mark as a well-known trade mark for registration under this Act.
(9) The Registrar shall not require as a condition, for determining whether a trade mark is a well-known trade mark, any of the following, namely:--
(i) that the trade mark has been used in India;
(ii) that the trade mark has been registered;
(iii) that the application for registration of the trade mark has been filed in India;
(iv) that the trade mark--
(a) is well-known in; or
(b) has been registered in; or
(c) in respect of which an application for registration has been filed in, any jurisdiction other than India, or
(v) that the trade mark is well-known to the public at large in India.
(10) While considering an application for registration of a trade mark and opposition filed in respect thereof, the Registrar shall--
(i) protect a well-known trade mark against the identical or similar trade marks;
(ii) take into consideration the bad faith involved either of the applicant or the opponent affecting the right relating to the trade mark.
(11) Where a trade mark has been registered in good faith disclosing the material informations to the Registrar or where right to a trade mark has been acquired through use in good faith before the commencement of this Act, then, nothing in this Act shall prejudice the validity of the registration of that trade mark or right to use that trade mark on the ground that such trade mark is identical with or similar to a well-known trade mark.