articles
Corporate
Understanding cross border social security obligations
14 九月 2020
The article notes that many countries with which India has SSAs have clarified that the work from home scenarios arising out of COVID-19 would not be considered for determining the eligibility of payment of social security obligations, but in the absence of any clarification from Employees Provident Fund Organisation, there exists an ambiguity on the status of foreign workers who are currently working remotely from their home country…
Intellectual Property
Patents – Patentability with respect to inventive step and proof of right
13 九月 2020
In this case [Stempeutics Research Pvt. Ltd. v. The Assistant Controller of Patents & Designs ], the Intellectual Property Appellate Board (‘IPAB’) adjudicated patentability with respect to inventive step under Sections 2(1)(ja) and 3(e) of the Patents Act, 1970 (‘Act’). The IPAB also addressed the issue of submission of proof of right under Section 7(2) of the Act.
Intellectual Property
Trademarks “Your Wings to Life” and “Gives You Wings” are neither deceptively similar nor identical
10 九月 2020
In the present case [Red Bull AG v. Dr. Reddy’s Laboratories Limited & Ors. ], the Intellectual Property Appellate Board (“IPAB”), determined whether a registered trademark of a sub-brand, if not in use, can be removed from the trademark register on the request of a non-aggrieved party.
Intellectual Property
Trademarks – Prior use holds precedence over prior registration
10 九月 2020
In the present case [Mandom Corp v. Fem Care Pharma Limited & Ors. ], the Intellectual Property Appellate Board (“IPAB”) examined one aspect of the often ambiguous issue in trademark law of prior use versus prior registration. It also clarified certain procedural law principles like res judicata, locus standi, and burden of proof.
International Trade & WTO
Suspension of lesser duty rule by the EU in anti-dumping investigations
28 八月 2020
The lesser duty rule may be suspended by the EU if there are distortions of raw materials price. Moreover, as per Article 7(2a), the lesser duty rule can only be suspended when a single raw material for which distortion is found accounts for not less than 17% of the cost of production of the product concerned. After these requirements of Article 7(2a) are met, it still has to go through the rigours of the Union interest test.
Goods and Services Tax
‘Intermediary’ – Mediating required for intermediary
26 八月 2020
The article discusses at length the issue as to whether an intermediary suppling service to a foreign customer should discharge CGST+SGST or IGST. The authors are of the view that in such case, the transaction would be covered under Section 13(8)(c) and be deemed as inter-State supply as per Section 7(5)(c). They also state that the Gujarat High Court’s observation in the case of Material Recycling Association of India, that CGST+SGST would be liable in such case, is a mere obiter dicta.
Goods and Services Tax
Contractual payment = Consideration?
26 八月 2020
The article elaborately discusses the thin line which a payment needs to cross in order to become a consideration. Discussing the definitions of ‘consideration’ under GST law and Indian Contract Act, 1872, the article states that payment should have a direct and sufficient nexus with the supply and be at the desire of the promisor.
Competition and Antitrust
CCI’s changed approach to enforcement amidst the pandemic
26 八月 2020
The Competition Commission of India’s (“CCI”) regular functioning continues to stand suspended amid the COVID-19 pandemic since March 2020. The Indian antitrust regulator however was quick to adapt to the changed circumstances and adopted a modus operandi which allowed for parties to submit merger notifications as well as responses in on-going investigations and new informations online.
Direct Tax
Doctrine of Merger and its application to orders passed under Income Tax Act, 1961
18 八月 2020
Doctrine of Merger is not applicable in all scenarios and to all the orders passed under the Income Tax Act. The Courts have been playing a vital role by applying this doctrine on case to case basis to determine whether or not the powers under Section 263 and 154 have been exercised within the time limits prescribed and also in certain cases to determine if the appeals have been filed within the condonable period.
Intellectual Property
Dishonest adoption of a well-known trademark for dissimilar goods and services - A ground of infringement
14 八月 2020
The Delhi High Court in the case of Bayerische Motoren Werke AG v. Om Balajee Automobile (India) Private Limited granted an ad-interim injunction to the plaintiff and restrained the defendants, from manufacturing, exporting, importing or offering for sale, advertising or in any manner dealing with goods, not limited to e-rickshaws, bearing the mark “DMW” or any other mark which is identical or deceptively similar to the plaintiff’s “BMW” trademarks.
Corporate
Corporate Social Responsibility and implementation agencies
11 八月 2020
The article discusses at length the recently released draft Companies (Corporate Social Responsibility Policy) Amendment Rules, 2020. According to the authors, the Draft Rules are a ray of hope in regulating implementation agencies and ensuring a greater transparency by formulating the registration process.
International Trade & WTO
Implementation of Significant Distortions Methodology by EU in original anti-dumping investigations – Who’s next after China?
29 七月 2020
Significant distortions methodology on imports from China as per Article 2(6a) of the EU’s Basic Regulation has been applied in three original anti-dumping investigations. While individual producers/exporters continue to register their participation, there is no opposition/response from China during the investigations to avoid application of significant distortion methodology and as a result, exports from China face the same treatment as that of a non-market economy country.
Goods and Services Tax
Is the time limit for filing TRAN-1 sacrosanct – Madras High Court adds a twist to the never-ending tale
27 七月 2020
Question whether the time limit imposed on transitioning the credit into GST from the erstwhile regime is sacrosanct has now been decided by various High Courts and interestingly, not all of them have taken the same view. Recently the Madras High Court has held that the provision imposing time limit is intra vires the Central Goods and Services Tax Act, 2017 and is mandatory in nature.
Goods and Services Tax
Ongoing concerns on ‘Going concern’
27 七月 2020
The article attempts to explain when the transfer of a business should be treated as a ‘transfer of a going concern, as a whole or an independent part thereof’ which is an exempt supply under GST laws.
Direct Tax
Proviso to Section 115BAA(3) – Sowing confusion or certainty?
21 七月 2020
The article addresses an issue that may arise regarding the treatment of unclaimed portion of additional depreciation in respect of companies with substantial capital expansion in the relevant AY while opting for Section 115BAA of the Income Tax Act relating to reduced corporate taxation scheme.
Intellectual Property
Emerging preferences in trademarks amidst COVID-19 – Analysis of registrability and other related issues
15 七月 2020
Since February 2020, the Covid-19 (also known as Coronavirus) pandemic has been a major talking point and consequently many pandemic referenced words are being used as trademarks and are being filed for registration at Trade Mark Registries worldwide. The article analyses the various registrability issues pertaining with ‘Covid’ or ‘Corona’ referenced trademarks filed in India and other related issues that may pose difficulties in seeking the registration.
Arbitration, Commercial litigation
Arbitrability of disputes post execution of ‘unconditional discharge vouchers’ – An analysis
13 七月 2020
One of the common defenses taken by a party, facing a claim in an arbitration is that the contract has already been discharged by performance, however, it is not uncommon for the claimant to dispute the discharge voucher signed by it and claim that it was executed under fraud, coercion or undue influence.
Direct Tax
Virtual Hearing: An effective alternative to in-person hearing?
10 七月 2020
Covid-19 has been affecting every sphere of our lives for the past many months and it is evident that the same would continue for the next few months, to say the least. Amongst others, judicial system in India has seen immense pressure to adapt to the existing circumstances posed by the pandemic and provide a redressal platform for the existing and future litigation.
International Trade & WTO
Implementation of Significant Distortions Methodology by EU in review of anti-dumping duty on exports from China
29 六月 2020
The European Union (‘EU’) amended EU Regulation 2016/1036 of 08-06-2016 (‘the Basic Anti-dumping Regulation’) on 12-12-2017 through which it introduced Article 2(6a). Through this amendment, the EU created a possibility whereby actual domestic selling price and costs of producer/exporter can be rejected for determining normal value in anti-dumping investigations/reviews where there are ‘significant distortions of prices and costs’.