“Booking” is a generic name which can not be registered as trademark

A generic name is the name of a class of products or services, is ineligible for trademark registration.

Booking.com, a travel-reservation website, sought federal registration of marks including the term “Booking.com.” USA Supreme Court Concluded that “Booking.com” was a generic name for online hotel-reservation services, not eligible to registration as Trademark.

Held: A term styled “generic.com” is a generic name for a class of goods or services only if the term has that meaning to consumers.

(a) Whether a compound term is generic turns on whether that term, taken as a whole, signifies to consumers a class of goods or services. The courts below determined, and the PTO no longer disputes, that consumers do not in fact perceive the term “Booking.com” that way. Because “Booking.com” is not a generic name to consumers, it is not generic.

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How to make a Will

This is a legal guide written in accordance with Indian Law but it may generally be correct for all countries following Anglo-Saxon laws. Further, succession to immovable properties situated in India, shall be regulated by Indian Laws, irrespective of the domicile of such person. In other words, foreigners who own immovable assets in India, shall have to confirm to Indian Laws to make a legally competent and operative Will. This book is intended to act only as a brief introduction to the laws relating to Wills and is not intended to replace legal advice from a competent practitioner of law.
This book is intended to remove doubts and myths about Wills which are compounded by free misinformation available on the Internet either as a web page or guide-lines in pdf format.
The target readers are law students and amateur beginners who wish to draft their own Will. Various specimen of Wills are also included with the book. It is however strongly advised that after drafting a Will in accordance with this book, do consult a Lawyer of your choice and get it vetted from him/her.
Caution: This book is generally applicable to Hindus, Sikh, Jain etc. domiciled in India. Most part of this Book may not be applicable to Indian Christians, Muslims and Parsees who are governed by separate customary law. It also do not apply to armymen, airmen and marines who are entitled to execute privileged (oral) Wills.

This is the self-help book on drafting of Wills:

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Contemporanea Expositio: Clarification/Circular of Department when not binding

Clarifications/Circulars:

The so-called Clarifications dated 09.11.1989 and 27.12.2000 had not been of explaining the meaning of any doubtful term or expression in the statutory provision nor they were explaining the object and purport of the provision concerned. The said Clarifications/Circulars had merely been the expression of the understanding of the concerned officer, be it SCCT or PCCT, about operation of Section 7-A of the Act vis-à-vis the purchase turnover of the empty bottles purchased by the assessee. However, such understanding of the officer concerned turns out to be a pure misunderstanding, when it stands at contradiction or incongruous to the declaration of law by the Courts; and could only be ignored. The latest Circular of the year 2002, issued after decision of the jurisdictional Tribunal in the case of Appollo Saline Pharmaceuticals (supra) could also be read only to the extent it is in conformity with the decision of the Tribunal (that came to be approved by the High Court) and in any case, even this circular cannot be decisive of the interpretation of Section 7-A of the Act. The decisive interpretation shall only be the one which is rendered in the binding decision/s of the Court. In continuity, we may also observe that various other decisions referred on behalf of the assessee, that modification of any particular circular or guideline or policy decision could only be made effective prospectively, have no application whatsoever to the present case.

Held that the purchase turnover of the empty bottles purchased by the assessee from the unregistered dealers under bought note is exigible to purchase tax under Section 7-A of the Tamil Nadu Act; and the assessee cannot escape such liability on the strength of the Clarifications/Circulars.

[Source: Commercial Tax Officer vs. Mohan Brewries, decided by Supreme Court on 29th June 2020.]

Note: Contemporanea expositio is a well known doctrine of interpreting a statute by reference to the exposition it has received from contemporary authority.

Monthly tenancy with provision for annual increase of rent does not require registration

The rent note contained only monthly rent and payment month by month.

As per law there shall be a presumption that the tenancy in the present case is monthly tenancy.

When the clauses of rent note are cumulatively read, the intention of the tenant is more than clear that tenancy was only monthly tenancy, which could have been terminated on default of payment of rent by 5th day of any month or by notice of one month. The rent deed did not confer any right to tenant to continue in the tenancy for a period of more than one year nor it can be said that tenancy was created for a period of more than one year.

Payment of salary to employees during Corona lock down 2020

Validity of directions given for full payment of wages:

The petitioner’s case is that notifications are arbitrary, illegal, irrational and unreasonable and contrary to the provisions of law including Article 14, Article 19(1)(g). Notifications are unreasonable and arbitrary interference with the rights of petitioner Employers under Article 19(1)(g). Notifications are also contrary to the principles of Equal work Equal Pay and also No work No pay, for it does not differentiate between the workers who are working during the lockdown period in establishment such asthe petitioner who have been permitted to operate during the lockdown period and the workers who had not worked at all. 5.The Home Secretary, Ministry of Home Affairs, Government of India, cannot invoke Section 10(2)(l) or any other provisions of Disaster Management Act, 2005,to impose financial obligations on the private sector such as payment of wages. The Central Government has the power to allocate funds for emergency response, relief, rehabilitation, mitigation of disasters under Disaster Management Act. The ultimate onus for any compensation towards workers shall ultimately be of Government and the said liability cannot be shifted upon the employers in the Private establishment. The impugned notifications have the effect of completely negating the statutory provisions under the Industrial Disputes Act, 1947.

Effect of Lock down:

It cannot be disputed that the lockdown measures enforced by the Government of India under the Disaster Management Act, 2005, had equally adverse effect on the employers as well as on employees. Various Industries,establishments were not allowed to function during the said period and those allowed to function also could not function to their capacity.There can be no denial that lockdown measures which were enforced by the Government of India had serious consequences both on employers and employees.

Paying capacity:

Some of the industries and establishments may bear the financial burden of payment of wages or substantial wages during the lock-down period to its workers and employees. Some of them may not be able to bear the entire burden. A balance has to be struck between these two competitive claims.The workers and employees although were ready to work but due to closure of industries could not work and suffered. For smooth running of industries with the participation of the workforce, it is essential that a via media be found out.

Directions by Supreme Court:

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Income Tax: Commission to Procure Goods from India if exempt?

Difference between Service Rendered from India and in India:

Exemption to Income u/s 80-O of  Income Tax Act, 1961.

The agreements of the appellant with the foreign entities primarily show that the appellant was to locate the source of supply of the referred merchandise and inform the principals; to keep liaison with the agencies carrying out organoleptic/bacteriological analysis and communicate the result of inspection; to make available to the foreign principals the analysis of seafood supply situation and prices; and to keep the foreign principals informed of the latest trends in the market and also to negotiate and finalise the prices. As per the agreements, in lieu of such services, the appellant was to receive the agreed commission on the invoice amounts.

In contrast to what has been observed in the cases of J.B. Boda &Co. (advising on the risk factor related to the proposed insurance/reinsurance) and E.P.W. Da Costa (dealing with statistical analysis of data collected), what turns out as regards the activities/services of the appellant is that the appellant was essentially to ensure supply of enough quantity of good quality merchandise in proper packing and at competitive prices to the satisfaction of the principals. This has essentially been the job of a procuring agent. Though the expressions “expert information and advice”, “analysis”, “technical guidance” etc., have been used in the agreements but, these expressions cannot be read out of context and de hors the purpose of the agreement. All the clauses of the agreements read together make it absolutely clear that the appellant was merely a procuring agent and it was his responsibility to ensure that proper goods are supplied in proper packing to the satisfaction of the principal. All other services or activities mentioned in the agreements were only incidental to its main functioning as agent. Significantly, the payment to the appellant, whatever label it might have carried, was only on the basis of the amount of invoice pertaining to the goods. There had not been any provision for any specific payment referable to the so-called analysis or technical guidance or advice. Viewed from any angle, the services of the appellant were nothing but of an agent, who was procuring the merchandise for its principals; and such services by the appellant, as agent, were rendered in India. Even if certain information was sent by the assessee to the principals, the information did not fall in the category of such professional services or information which could justify its claim for deduction under Section 80-O of the Act. In other words, in the holistic view of the terms of the agreements, we have not an iota of doubt that the appellant was only a procuring agent, as rightly described by the High Court. 33.If at all any doubt yet remains about the nature of services of the appellant, the same is effectively quelled by the default clauses in the agreements in question.

Conclusion:

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Partnership firm: difference between dissolution and retirement

There is a clear distinction between ‘retirement of a partner’ and‘dissolution of a partnership firm’.

On retirement of the partner, there constituted firm continues and the retiring partner is to be paid his dues in terms of Section 37 of the Partnership Act. In case of dissolution, accounts have to be settled and distributed as per the mode prescribed in Section 48 of the Partnership Act. When the partners agree to dissolve a partnership, it is a case of dissolution and not retirement

[See – Pamuru Vishnu Vinodh Reddy v.Chillakuru Chandrasekhara Reddy, (2003) 3 SCC445].

In the present case, there being only two partners, the partnership firm could not have continued to carry on business as the firm. A partnership firm must have at least two partners. When there are only two partners and one has agreed to retire, then the retirement amounts to dissolution of the firm. Continue reading “Partnership firm: difference between dissolution and retirement”

The Will which is not last and final:

Probate of incomplete Will:

The Will in question (Ex.PW1/H) is drawn on two pages and is complete in itself and does not leave any scope for any other codicilconcerning the estate of the deceased, particularly when bequeath has been made not only of the immovable property and the bank account but also as regards the other assets of testatrix in the residuary clause, which reads as under: –

“2. I also direct that in the event of my acquiring any further movable or immovable assets hereinafter or any other assets that I may have forgotten to mention in the present Will the same shall devolve upon my daughter Mrs. Kavita Kanwar.”

Now, from the evidence on record and from the stand of the appellant, there is little to doubt that there had been several other assets of the testatrix apart from the said immovable property and the bank account.By virtue of the aforesaid residuary clause, all such other assets are bequeathed to the appellant. In the given scenario, two serious questions perforce acquire immediate attention. One that while making the application seeking probate, the appellant did not divulge all other assets which were to come in her hands by virtue of the said residuary clause of the Will in question.

Secondly, when there had not been any direction in the two page Will in question for making payment to anyone or parting with any movable to anyone, what had been the reason for the appellant making payment to different persons, including her own sons, the daughter of the attesting witness and the daughter of the respondent No. 1 apart from giving car to the daughter of the respondent No. 1 and jewelleries to the respondent No. 1 (as alleged in the written submissions before the10 In paragraph 8.2 herein before, we have reproduced the major contents of the application seeking probate with its Annexure-B wherein, only the said immovable property and the amount lying in the bank account were stated; and in paragraph 12 of the application, the appellant mentioned the immovable property as the only asset likely to come in her hands with the referred stipulations.

Both these questions on the conduct of the appellant onlythicken the suspicious circumstances surrounding the Will in question.

Neither Last nor Final Will:

On the other hand, as soon as the possibility of existence of such third page carrying the desire and directions of the testatrix about distribution of her other movable property is taken into account, the document Ex.PW1/H loses all its worth because it cannot be said the testatrix executed the same after understanding the meaning and purport of its contents. If she had the desire of distribution of movable property in a different manner and to different persons (as alleged by the appellant before the High Court), the aforesaid residuary clause would not have occurred in the Will in question at all. Secondly, if it is assumed that the testatrix issued separate directions about distribution of her assets de hors the Will then, the Will in question ceases to be her last Will.
Hence, to cap all the suspicious circumstances, the aforesaid equivocal stand of the appellant, as regards the third page of the Will and her assertion of having acted in accordance with the “directions” in the said third page of the Will, effectively knocks the entire case of the appellant down to the bottom. The suspicions arising because of the facts and factors  noticed herein before, including the unnatural exclusion of the respondents from estate; uncertain and rather inexecutable stipulation about construction by the appellant for the purpose of the respondent No.1; active role played by the appellant in execution of the Will and yet seeking to avoid the factum of her role by incomplete and vague statements; and the  witnesses having contradicted the appellant on material particulars etc.,have not only gone unexplained but are confounded beyond repair with such vacillating stand of the appellant regarding the said third page of the Will of the testatrix.
(As per the submissions made before the High Court, the appellant indeed carried out the directions contained in such third page of the Will.)

Continue reading “The Will which is not last and final:”

Advocates Act, 1961: A Commentary.

Advocates Act, 1961 governs the legal profession in India. According to this law there are two classes of lawyers entitled to practice law in India i.e. advocates and Senior Advocates. The Act has provisions for entry into profession as well as discipline and exit from profession. All the three aspects are looked after by the Bar councils created under the Act which is a body of lawyers themselves. Bar Council also frames the Code of Conduct and Rules of Professional Ethics to be followed by every practicing lawyer. This book contains a specific chapter on Professional Ethics covering material from all over the Globe.

Commentary on Advocates Act is among the bestsellers which was first published in hard print in 2001 and sold out. Republished again in 2004 and sold out. It is presently available in eBook format.

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