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 Contents 

*    Guidelines for Closure of Liaison Office established  in India by foreign Insurance Companies

Intellectual Property

*    Carrefour wins Trade Mark case in Madras High Court

*    Tussle over usage of domain name Indiatvlive.com 

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Guidelines for Closure of Liaison Office established  in India by foreign Insurance Companies       TOP

Government of India have entrusted the regulatory work pertaining to Liaison offices of Insurance companies w.e.f. 6thDec 2005 to Insurance Regulatory Development Authority “IRDA”. IRDA’s framework for approval of opening of Liaison office of foreign insurance companies registered outside India is already placed in the website (www.irdaindia.org). In continuation thereof, the IRDA has now issued the following guidelines for closure of Liaison Office established in India by insurance companies registered outside India.

Requests for closure of Liaison Office shall be submitted to Insurance Regulatory and Development Authority in form IRDA-FIC-2. The application for closure of Liaison Offices shall be submitted along with the following documents:

•  Certified copy of the IRDA’s permission for establishing the branch / liaison office in India.

•  A  Chartered Accountant’s certificate:

• Indicating the manner in which the remittable amount has been arrived at and supported by a statement of assets and liabilities of the applicant, and indicating the manner of disposal of assets;

• Confirming that all liabilities in India including arrears of gratuity and other benefits to employees etc. of the office have been either fully met or adequately provided for; 

• Confirming that no proceeds accruing from sources outside India has remained un-repatriated to India

•   Confirmation from the parent entity that no legal proceedings in any court in India are pending against the Liaison Office and  there is no legal impediment to the closure/ remittance.

•   No-objection/ Tax Clearance Certificate from Income Tax authority for the remittance; or an undertaking from the applicant and a certificate from the Chartered Accountant regarding undertaking to be obtained from a person making remittance of foreign exchange as advised by RBI from time to time (AP (Dir Series) Circular No.56 of 26 th November, 2002 of RBI may be referred to), and

Approval for closure and remittance of proceeds is granted provided the Liaison Office has submitted the Annual Activity Certificate for all the years for which it was in operation in India. The certificate is submitted by the Chartered Accountant of the Liaison Office, stating that the Liaison Office has complied with the terms and conditions stipulated by IRDA at the time of granting approval.

Regulation of new Technologies - IPTV       TOP

EMERGING technologies such as IPTV, mobile TV, and DTH are set to get shot in the arm with the ministry of communications and the ministry of information and broadcasting (I&B) reaching an agreement on the content, carriage, regulatory and licensing jurisdiction of these new technologies.

This is expected to bring clarity over regulations for these new technologies, which have scope for large scale roll out. The two ministries — communications and I&B — have been involved in a prolonged tussle over jurisdiction for services such as IPTV, and had even approached the law ministry over this issue.

In the case of IPTV, the communications ministry will be the regulatory and licensing authority, while I&B ministry will monitor the content provided by broadcasters to telecom players who offer this service. IPTV players can only carry channels registered with I&B ministry, and for services like video on demand, they will require certification from the Central Board of Film Certification. Internet-based content on IPTV will be regulated by the Information Technology Act. The telecom players can be brought to task by Department of Telecommunication for breach of any conditions regarding to content. However, if the breach is by the broadcaster providing content to the IPTV player, then it will be dealt with by I&B ministry.

The two ministries have also agreed that once the proposed, Broadcast Services Regulation Bill is approved, the TRAI Act will be amended. This will mean that broadcasting services will no longer be categorized as telecommunication service. At present, many issues relating to broadcasting including direct-to home (DTH), CAS, mobile TV, fixing prices of channels is regulated by TRAI. The consultation process for various policy related broadcasting issues are also undertaken by TRAI, as per instructions of the I&B ministry.

Once the Broadcast Regulatory Authority of India comes into effect it will regulate matters relating to broadcasting services including content, issuing licences, permissions, registration for broadcasting service providers. The authority will also determine appropriate tariffs and rates for service facilities and lay down codes and technical standards for quality. One of its main functions would be to monitor broadcast content and its regulation and will be under the control of I&B ministry.

The Government has enhanced the Foreign Direct Investment limit from 49 % to 74 % in telecom sector vide press note 3 of 2007 subject to the following conditions;

There are certain security conditions mentioned in the guidelines. For details of the same or copy of press note 3, you may contact us at our New Delhi Office.                                                                                                                                                                           TOP

Intellectual Property Laws

The Madras High Court has held that the France-based Carrefour, running a chain of retail outlets in France besides European, Asian and West Asian countries, has established itself as the legal owner of the registered trademark ‘CARREFOUR’. Hence, the public was likely to be deceived into thinking that products offered by others had a connection in the course of trade, to the former.

Mr Justice V. Ramasubramanian, who allowed applications from the French retailer praying for granting an interim injunction restraining the respondents — Mr V. Subburaman, Ms Ayesha Anjum, Mr S. Munir Ahmad and Carrefour House of Interiors, all based in Chennai — from using the trade mark ‘CARREFOUR’, ruled that the applicant would suffer irreparable injury if injunction was refused.

The firm claimed a right over the said trademark by virtue of its use from 1960 in France, where its first store was opened on April 8, 1960. It said it was the second largest in the world with a network of 7000 stores and having a sales turnover of €94 billion. It had secured 2,500 registrations/applications for its trade mark in about 80 countries.

The firm contended that the respondents had no dispute about the fact that the word ‘CARREFOUR’ was a French word meaning ‘crossroad’. The respondents claimed user of the name only from 2000.

The respondents submitted, among other things, that the trademark ‘CARREFOUR’ could not be considered to have acquired the status of a “well known mark” and they had already applied for the registration of the trademark under application dated 21-9-2001 in respect of furniture, and there had been no opposition from anyone. They had come to use the trademark as a result of ‘honest adoption’ and that therefore, the applicant was not entitled to prevent them from using it.

The Judge held that the vested rights of a prior user of a trademark were protected by Section 34 of Trade Marks Act, 1999 from interference by a registered subsequent user. Registration of trade name ‘CARREFOUR’ secured by the applicant in India dated back to January 1995. The respondents started adopting the mark only in July 2000. Hence, they had failed to pass the test of “honesty in adoption”.

The Plaintiff “Independent news services pvt limited (INDIA TV)” and Defendant “India broadcast live (Indiatvlive)” are both broadcaster of Hindi News Channel in INDIA. Plaintiff filed plea seeking injunction against the defendant from using the domain name ‘Indiatvlive.com’ claiming its rights over the words ‘INDIA TV’. The Plaintiff also argued that suffix of word ‘Live’ would not distinguish the website of the defendant from the Plaintiff’s mark ‘INDIA TV’.

Hon`ble Delhi High Court under the  bench of  Justice Sanjay Kishan Kaul considering all of the facts and arguments, held that Mark of the Plaintiff ‘INDIA TV’ is comprised of ordinary descriptive words and the mark ‘INDIA TV’, does not indicate itself to be a Hindi news channel. Hence the mark could not lead a person to connect the same with a Hindi news channel.

Secondly ‘Evidence of ratings’ Shows that Plaintiff’s channel is not among popular news channels in India and use of suffix, ‘Live’ can sufficiently distinguish the website of defendant from the Plaintiff’s mark.

The Hon`ble Delhi High Court permitted Defendant to use domain name ‘indiatvlive.com’ with the disclaimer that “This website has no relation/connection, affiliation or association whatsoever with ‘INDIA TV’, the Indian Hindi news channel & current affairs television”                

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