By Kumud Malviya ID No. 477 L.L-M llnd Year

Section 3 of the Act deals with agreements among enterprises or persons or association of persons, which causes or likely to cause appreciable adverse effect on competition. Such agreements are rendered void pursuant to this section. The Act deals with following kind of agreements.

Horizontal Agreements Vertical Agreements

Agreements between enterprises at the same stage of production, services, etc. and including Cartels. Examples : (i) directly or indirectly determines purchase or sale prices; (ii) limit or control production, supply, technical development etc. (iii) allocate areas or customers (iv) Directly or indirectly results in bid rigging or collusive bidding.

Above agreements are presumed to cause appreciable adverse

effect on competition in the markets.

Agreements between enterprises at different stages of production, distribution, etc.- subject to Rule of Reason; burden of appreciable adverse effect on competition, they are prohibited.

Examples :(i) Tie-in arrangement; (ii) Exclusive supply agreement;

(iii) Exclusive distribution agreement;(iv) Refusal to deal; (v) Re-sale price maintenance.

(5) Nothing contained in this section shall restrict-(i) the right of any person to restrain any infringement of, or to impose reasonable conditions, as may be necessary for protecting any of his rights which have been or may be conferred upon him under-(a) the Copyright Act, 1957 (14 of 1957 ); (b) the Patents Act, 1970 (39 of 1970 ); (c) the Trade and Merchandise Marks Act, 1958 (43 of 1958 ) or the Trade Marks Act, 1999 (47 of 1999 ); (d) the Geographical Indications of Goods (Registration and Protection) Act, 1999 (48 of 1999 ); (e)the Designs Act, 2000 (16 of 2000 ); (f)the Semi- conductor Integrated Circuits Layout- Design Act, 2000 (37 of 2000 ); (ii) the right of any person to export goods from India to the extent to which the agreement relates exclusively to the production, supply, distribution or control of goods or provision of services for such export.

Section-3

(5) provide exceptions to anticompetitive agreement in case of intellectual property. Intellectual property is the product or creation of the mind. It is different from other properties in terms that it is intangible. Hence it needs some different way for its protection. Intellectual property include Patent, Trade Mark, Industrial design, Trade secrete and copyright.

IPR

is a body of law developed to protect the creative people who have disclosed their invention for the benefit of mankind. This protects their invention from being coped or imitated without their consent and to encourage and promote the inventive activity.

The

exclusive right given by law for a certain term of years to an author, composer etc. (or his assignee) to print, publish and sell copies of his original work (Oxford English Dictionary)

Fair

Play: Reward creative efforts.

Exclusive

rights for limited time Negative right: prevent copying/reproduction is necessary to encourage dissemination of copyrighted works = public interest

Copyright

Depends

on nature of work/owner of copyright and whether the work has been published Most works: 60 years Broadcast Reproduction: 25 years

Original

Literary, Dramatic, Musical and Artistic Works Cinematograph Films Sound Recordings Computer Software

Any

reproduction, use , distribution, performance, etc. of the work without the permission of the copyright owner. An identical or substantial similar reproduction is also covered Infringement Damages - Injunction

A

patent is a grant from the government which confers on the guarantee for a limited period of time the exclusive privilege of making, selling, and using the invention for which a patent has been granted. A guarantee for a limited period of time i.e. term of patent 20 years The privilege given under the patent Act for making, selling and using the invention to ensure maximum profit of the inventive work to the inventor.

Trademark

is a symbol that indicates who is responsible for the goods placed in the market Trademarks help to distinguish between the goods of competing traders Trademark helps a customer to buy goods of a certain quality e.g. color, size, weight, fragrance, taste.

To provide for registration of trade mark for services, in addition to goods; Registration of trade marks, which are imitation of well known trade marks, not to be permitted, besides enlarging the grounds for refusal of registration; Amplification of factors to be considered for defining a well known mark; To provide only a single register with simplified procedure for registration and with equal rights.

1. 2.

3.4. 5.

Developments in trading and commercial practices Increasing globalization of trade and industry The need to encourage investment flows and transfer of technology Need for simplification & harmonization of trade mark management systems and To give effect to important judicial decisions

An indication of famous geographical area to identify agricultural, natural or manufactured goods originating from definite territory of India Darjeeling Tea, Basmati Rice, Kolhapuri chappal, Nagpur Orange etc. In India, geographical indications have to be registered. Geographical Indications Registry examines and publishes the application before registration Registration is valid for 10 years but can be renewed indefinitely

Exclusive

right to use the Geographical

Indication on the goods Right

to obtain relief for infringement of the

Geographical Indication

Any modifications in shape pattern, configuration e.g. shape of a handle or body portion of a pressure cooker . Design right is valid for 10 years from the date of its registration and it is extendable for another period of 5 years.

design

means only the features of shape, configuration, pattern, ornament or, composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye.

The

proprietor of the registered design has the exclusive right to apply the design to any article in the class in which the design is registered of protection extendable by 5 years. is ten years

Period

An

integrated circuit means a product, in its final form or an intermediate form, in which the elements, at least one of which is an active element, and some or all of the interconnections are integrally formed in and/or on a piece of material and which is intended to perform an electronic function.

A

layout-design (topography) is defined as the three-dimensional disposition, however expressed, of the elements, at least one of which is an active element, and of some or all of the interconnections of an integrated circuit, or such a threedimensional disposition prepared for an integrated circuit intended for manufacture.

The

obligation to protect layout-designs applies to such layout-designs that are original in the sense that they are the result of their creators' own intellectual effort and are not commonplace among creators of layout-designs and manufacturers of integrated circuits at the time of their creation.

The

exclusive rights include the right of reproduction and the right of importation, sale and other distribution for commercial purposes.

The Semi- conductor Integrated Circuits LayoutDesign Act, 2000 & Semiconductor Integrated Circuits Layout-Design Rules, 2001 has been enacted to provide for the protection of semiconductor integrated circuits layoutdesigns and for matters connected therewith or incidental thereto. According to the Act, the term 'layout-design' means "a layout of transistors and other circuitry elements and includes lead wires connecting such elements and expressed in any manner in a semiconductor integrated circuit".

A Layout-design (i) which is not original; or (ii) which has been commercially exploited anywhere in India or in a convention country; or (iii) which is not inherently distinctive; or (iv) which is not inherently capable of being distinguishable from any other registered layout-design, cannot be registered as a layout-design under the Act

infringement

of a registered layout-design occurs when any person who is not the registered proprietor of the design reproduces the layout-design in an integrated circuit or otherwise, wholly or partly. A person who imports, sells, or distributes a registered layout-design or an integrated circuit incorporating such layoutdesign or any article incorporating such layout-design for commercial purposes also causes infringement of such layout-design

Duration:

A period of 10 years counted from the date of filing an application for registration or from the date of first commercial exploitation anywhere in India or in any convention country or country specified by Government of India whichever is earlier

Section-3 the anti-competitive agreement does not apply in case of Export-Import License relates exclusively to the production, supply, distribution, or control of goods or provision of services for a particular goods or services. ExampleAtomic Energy Regulatory Board administrates the Nuclear License process. License is necessary to export civil nuclear technology or products such as reactors, pressure vessels, deuterium, nuclear-grade graphite, or other equipment or components. License can only be issued to a company exporting to a country with a pre-existing nuclear Agreement.