QP CODE: 21100007

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BBA DEGREE CBCS EXAMINATION FEBRUVARY 2021

FIFTH SEMESTER

BACHELOR OF BUSINESS ADMINISRATION

BA5CMT25- INTELLECTUAL PROPERTY RIGHTS AND INDUSTRIAL LAWS

2017 ADMISSION ONWARDS

PART A

Time: 3 hours Marks: 80

1. Intellectual property rights are the rights given to persons over the creations of their
minds. They usually give the creator an exclusive right over the use of his/her creation
for a certain period of time.

2. 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.
3. A "worker" is a person who is employed directly or by or through any agency, with or
without the knowledge of the principal employer whether for remuneration or not in any
manufacturing process, or in cleaning any part of the machinery or premises used for a
manufacturing process, or in any other kind of work incidental to, or connected with the
manufacturing process, or the subject of the manufacturing process but does not include
any member of the armed forces of the Union.
4. In every factory wherein five hundred or more workers are ordinarily employed the
occupier shall employ in the factory such number of welfare officers as may be
prescribed. The State Government may prescribe the duties, qualifications and
conditions of service of officers employed under sub-section 1 of Section 49.
5. As per the Factories Act 1948, every adult (a person who has completed 18 years of age)
cannot work for more than 48 hours in a week and not more than 9 hours in a day.
According to Section 51 of the Act, the spread over should not exceed 10-1/2 hours.
6. Section 2(n) defines public utility service" as--
(i) any railway service or any transport service for the carriage of passengers or goods by air

(ia) any service in, or in connection with the working of, any major port or dock

(ii) any section of an industrial establishment, on the working of which the safety of the
establishment or the workmen employed therein depends

(iii) any postal, telegraph or telephone service

(iv) any industry which supplies power, light or water to the public

(v) any system of public conservancy or sanitation

(vi) any industry specified in the First Schedule which the appropriate Government may, if
satisfied that public emergency or public interest so requires, by notification in the Official
Gazette, declare to be a public utility service for the purposes of the Act.

7. Lay-off’ has been defined under section 2 (kkk) of the Industrial Disputes Act, 1947,
thus lay-off means the failure, refusal or inability of an employer on account of the
shortage of coal, power or raw materials or the accumulation of stocks or the breakdown
of machinery or natural calamity or for any other unconnected reason to give
employment to a workman whose name is borne on the muster rolls of his industrial
establishment and who has not been retrenched.

8. Dependants are certain relatives of a deceased worker. These include his widow, a son
below 25 years of age, an unmarried daughter and his widowed mother. A son/daughter
above 25 years can also be a dependant if he/she is wholly dependant on the worker. In
certain cases, dependants can also be a minor illegitimate child, minor sibling, a parent
other than widowed mother, etc.

9. Maternity Benefit is payable to an Insured Woman. Enhancement

of Maternity Benefits under The ESI Act, 1948. Provided also that the insured woman
having two or more than two surviving children shall be entitled to
receive maternity benefits during a period of twelve weeks of which not more than six
weeks shall precede the expected date of confinement.

10. “Consumer dispute” refers to a dispute where a consumer make a complaint against a
person and the person denies the allegations contained in the complaint.
 11. A person shall be disqualified for appointment as the President or a member of a State
Commission or District Commission if he—(1) has been convicted and sentenced to
imprisonment for an offence which involves moral turpitude; or(2) has been adjudged to
be insolvent; or (3) is of unsound mind and stands so declared by a competent court; or
(4) has been removed or dismissed from the service of the State Government or
Central Government or a body corporate owned or controlled by such Government; or
(5) has, in the opinion of the State Government, such financial or other interest as is
likely to prejudicially affect his functions as the President or a member.

12. The State Consumer Dispute Redressal Commission has the pecuniary jurisdiction
where the claim exceeds 20 lakhs but does not exceed 1 crore rupees.

PART B

13. An action for infringement must be instituted by way of a suit in any District Court or a
High Court having jurisdiction to entertain the suit. The plaintiff on satisfying the court
about infringement of his patent would be entitled to the following relief:

1. Interlocutory injunction
2. Damages
3. Account of profits

Interlocutory Injunction: The Plaintiff may at the commencement of the action move for an
interim injunction to restrain the defendant from committing the acts complained of until the
hearing of the action or further orders. The plaintiff should make out a prima facie case and
also show that the balance of convenience lies in his favour.

Damages: In assessing the damages the important question is what is the loss sustained by
the patentee. The loss must be the natural and direct consequence of the defendant’s acts. The
object of damages is to compensate for loss or injury

Accounts of Profits: Where a patentee claims the profits made by the unauthorised use of his
patent, it is important to ascertain how much of his invention was appropriated, in order to
determine what proportion of the net profits realized by the infringer was attributable to its
use.
14. Collective marks serve to distinguish characteristic features of the product or services
offered by those enterprises. It may be owned by an association which may not use the
collective mark but whose members may use the same. The primary function of a
collective mark is to indicate a trademark connection with the proprietor Association or
organization. The main feature of collective mark is that it belongs to a group rather
than a single proprietor, which is in contrast with the general rule of identifying
trademarks with a peculiar source.

 Section 63 of the Act provides that an application for registration of

a collective mark shall be accompanied by the regulations governing the use of
such collective mark. The regulations governing the use of collective marks
shall attach to the application made for the registration of a collective mark.
These regulations states the persons authorized to use the collective mark, the
conditions of the mark. It shall also include any sanctions against misuse and
such other matters relating to collective marks

 To the satisfaction of registrar, the requirement of the registration has followed

by the applicant. He shall accept the application together with regulations so
attached to the application. Whether the regulations are unconditional or
subject to the conditions. It also includes the amendments in the regulation so
made. If he thinks fit, accept or refuse to accept it. If accepted shall notify the
regulations.
 The regulations so attached to the application, shall kept open for inspection.
Anybody from the public can inspect the said regulation which attached to the
application. This inspection done in interest of public at large. So that they can
known about the regulations of collective marks. Example who can use the
collective mark, conditions attached to collective mark etc.

15. For protecting the health of workers, the Act lays down that every factory shall be kept
clean and all necessary precautions shall be taken in this regard. The factories should
have proper drainage system, adequate lighting, ventilation, temperature etc.
 Adequate arrangements for drinking water should be made. Sufficient latrine and urinals
should be provided at convenient places. These should be easily accessible to workers
and must be kept cleaned.

 Section 11: Cleanliness in every factory

 Section 12: Disposal of effluents and wastes

 Section 13: Ventilation and Temperature

 Section 14: Dust and Fume

 Section 15: Artificial Humidification

 Section 16: Overcrowding

 Section 17: Lighting

 Section 18: Drinking Water

16. The provision relating to annual leave with wages is an important achievement of
factories act 1948. Actually this is such a welfare system which increases the efficiency
of workmen. Section 78 to 82 the act provides in this respect. In case of an adult – one
day for every twenty days of work, during the previous calendar year. In case of a child-
one day for every fifteen days, during the previous calendar year. The leaves shall be
exclusive of all the holidays occurring in between or end of the leave period.

17. According to Section 2(cc) of the Industrial Disputes Act, Closure of

an industry means the permanent closing down of a place of employment or part
thereof. Closure” as the permanent closing down of a place of employment or part
thereof. Here, the employer is constrained to close the establishment permanently.

(1)An employer who intends to close down an undertaking of an industrial establishment

to which this Chapter applies shall, in the prescribed manner, apply, for prior permission
at least ninety days before the date on which the intended closure is to become effective,
to the appropriate Government, stating clearly the reasons for the intended closure of the
undertaking and a copy of such application shall also be served simultaneously on the
representatives of the workmen in the prescribed manner: Provided that nothing in this
sub-section shall apply to an undertaking set up for the construction of buildings, bridges,
roads, canals, dams or for other construction work,

(2) Where an application for permission has been made under sub-section (1), the
appropriate Government, after making such enquiry as it thinks fit and after giving a
reasonable opportunity of being heard to the employer, the workmen! and the persons
interested in such closure may, having regard to the genuineness and adequacy of the
reasons stated by the employer, the interests of the general public and all other relevant
factors, by order and for reasons to be recorded in writing, grant or refuse to grant such
permission and a copy of such order shall be communicated to the employer and the
workmen.

(3) Where an application has been made under sub-section (1) and the appropriate
Government does not communicate the order granting or refusing to grant permission to
the employer within a period of sixty days from the date on which such application is
made, the permission applied for shall be deemed to have been granted on the
expiration of the said period of sixty days.

(4) An order of the appropriate Government granting or refusing to grant permission

shall, subject to the provisions of sub-section (5), be final and binding on all the parties
and shall remain in force for one year from the date of such order.

(5) The appropriate Government may, either on its own motion or on the application
made by the employer or any workman, review its order granting or refusing to grant
permission under sub-section (2) or refer the matter to a Tribunal for adjudication:
Provided that where a reference has been made to a Tribunal under this sub-section, it
shall pass an award within a period of thirty days from the date of such reference.

(6) Where no application for permission under sub-section (1) is made within the period
specified therein, or where the permission for closure has been refused, the closure of the
undertaking shall be deemed to be illegal from the date of closure and the workmen shall
be entitled to all the benefits under any law for the time being in force as if the
undertaking had not been closed down
 (7) Notwithstanding anything contained in the foregoing provisions of this section, the
appropriate Government may, if it is satisfied that owing to such exceptional
circumstances as accident in the undertaking or death of the employer or the like, it is
necessary so to do, by order, direct that the provisions of sub-section (1) shall not apply
in relation to such undertaking for such period as may be specified in the order.

(8) Where an undertaking is permitted to be closed down under subsection (2) or

where permission for closure is deemed to be granted under sub-section (3), every
workman who is employed in that undertaking immediately before the date of
application for permission under this section, shall be entitled to receive compensation
which shall be equivalent to fifteen days’ average pay for every completed year of
continuous service or any part thereof in excess of six months

18. The ESI Corporation is an apex body under the Employees’ State Insurance Act. Thus,
many important functionaries and experts play a role in its functioning. Consist of
 The Corporation is headed by a Chairman and a Vice-Chairman that the Central
Government appoints.
 Apart from these, the Central Government gets to appoint five other persons of its
choice.
 Each State Government also gets to appoint one representative for itself in the
Corporation.
 Another person that the Central Government appoints collectively represents all
Union Territories.
 In order to represent the views of employers and employees, the Central
Government appoints ten persons. The government generally consults with
employers’ organizations for this purpose.
 Even the medical profession gets representation in the Corporation through two
members.
 Finally, the Corporation also has a Director General whose post is ex-officio.
 Three Members of Parliament (2 from Lok Sabha and 1 from Rajya Sabha) also
become members.
19. E.S.I. Scheme being contributory in nature, all the employees in the factories or
establishments to which the Act applies shall be insured in a manner provided by the
Act. The funds under the ESI scheme are primarily built out of the contribution from
the employees and employers payable monthly at a fixed percentage of wages paid.
Currently, the employee contribution rate is 0.75% of the wages and that of employers
is 3.25% of the wages paid.
An employer is liable to pay his contribution in respect of every employee and deduct
employee’s contribution from wages bill and shall pay these contributions at the above
specified rates to the Corporation within 15 days of the last day of the Calendar month
in which the contributions fall due.
20. Right to Safety.
Right to be informed
Right to Choose
Right to be Heard
Right to Seek redressal
Right to Consumer Education

21. In order to help achieve the objects of the Consumer Protection Act, the National
Commission has also been conferred with the powers of administrative control over all
the State Commissions by calling for periodical returns regarding the institution,
disposal and pendency of cases. The National Commission is empowered to issue
instructions regarding:
(1) Adoption of uniform procedure in the hearing of the matters,
(2) Prior service of copies of documents produced by one party to the opposite parties,
(3) speedy grant of copies of documents, and (4) generally over-seeing the functioning
of the State Commissions and the District Forums to ensure that the objects and
purposes of the Act are best served, without interfering with their quasi-judicial
freedom.

PART C
22. Infringement occurs when someone else uses a trademark that is same as or similar to
your registered trademark for the same or similar goods/services. Trademark
 infringement claims generally involve the issues of likelihood of confusion, counterfeit
marks and dilution of marks.
Sec.29 (1) that a registered trade mark is infringed by a person who, not being a
registered proprietor or a person using by way of permitted use, uses in the course of
trade, a mark which is identical with, or deceptively similar to, the trade mark in relation
to goods or services in respect of which the trade mark is registered and in such manner
as to render the use of the mark likely to be taken as being used as a trade mark.

Section 2 defines the collective mark as under:

It is a trade mark which has following feature:-

1. It distinguishes the goods or services of members of an association of the persons.
2. Such persons shall not include the partners
3. They shall only be the proprietor of the mark.

A certification mark is a name, logo, or picture used to demonstrate a particular

product or service complies with a certain set of standards. When a company meets
those requirements, they can request the right to use the certification mark on its
products to indicate they have met certain standards.

Well-known trademark as, "a mark which has become 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.

Passing off is a common law tort, which can be used to enforce

unregistered trademark rights. The law of passing off prevents one person from
misrepresenting his goods or services as that of another.

23. In case of an adult – one day for every twenty days of work, during the previous
calendar year.
  In case of a child- one day for every fifteen days, during the previous calendar
year. The leaves shall be exclusive of all the holidays occurring in between or
end of the leave period.
 If a worker has worked for the two third of the total number of days in the
balance of the calendar year.
 If a worker is being dismissed or resigns from the work or if s/he dies during his
service period, the amount shall be paid to the nominee.
 While calculating the leaves the fraction of half day or more would be
considered as a full day.
 If any worker/s hasn’t taken any leave in the previous year calendar, then his
previous leaves will be added to the current year of leaves calendar.
 The paid leaves shall be granted to the worker who is on sick leave, under the
section 81, the worker should be allowed to have paid leave to cover the period
of illness.
24. A Strike is the ceasing of work by employees of an industry with the objective of
forcing an employee to meet particular demands. Section 22, on these grounds the
strikes can be considered as illegal:

1. Without giving to employer notice of strike within six weeks before striking; or
2. Within fourteen days of giving such notice; or
3. Before the expiry of the date of strike specified in any such notice as aforesaid; or
4. During the pendency of any conciliation proceedings before a conciliation officer
and seven days after the conclusion of such proceedings.

The provisions under section 23 are general in nature. It imposes general restrictions
on declaring strike in breach of contract in both public as well as non- public utility
services in the following circumstances mainly: – During the pendency of conciliation
proceedings before a board and till the expiry of 7 days after the conclusion of such
proceedings; During the pendency and 2 months after the conclusion of proceedings
before a Labour Court, Tribunal or National Tribunal; During the pendency and 2
months after the conclusion of the arbitrator, when a notification has been issued
under subsection 3 (a) of section 10 A; During any period in which a settlement or
award is in operation in respect of any of the matter covered by the settlement or
award.
 A lockout is the act of employers that entails closing the workplace temporarily,
suspending work or cutting short the employment of any number of individuals
initially employed.

Section 22 (2) of the Act provides that no employer carrying on any public utility
service shall lock out any of his workmen:

1.Without giving them notice of lockout as hereinafter provided, within six weeks
before locking out; or

2. Within 14 days of giving notice; or

3. Before the expiry of the day of lockout specified in any such notice as aforesaid; or

4. during the pendency of any conciliation proceedings before a Conciliation Officer

and seven days after the conclusion of such proceedings.

25. A consumer complaint shall be made in writing to a District Forum.

 The complaint can be written on a plain paper and filed by the consumer himself or
through an authorized agent.
 The complaint should be notarised through a registered or regular post.
 It should be filed within 2 years of the date on which the dispute arose.
 The complainant is required to file four copies of the complaint and additional copies
for each opposite party.
 The consumer complaint shall include the details of the complainant and the opposite
party along with the particulars of the dispute and the relief to be sought.
 Also, copies of relevant documents required to prove the claim mentioned in the
complaint shall be attached to the complaint. It is not necessary to approach an
advocate to file a consumer complaint.
 The fee shall be paid in demand draft to the President, Consumer Disputes
Redressal Forum, (name of) district

Details to be included in complaint

A consumer complaint shall consist of the following details:

  Name and address of the complainant and the opposite party.
 The date on which the goods were purchased or services availed, details of such
goods and services and the amount paid for the same.
 The subject of the complaint, whether it was an unfair trade practice, defective goods
were supplied, deficiency in services provided.
 The bills and receipts of the concerned product or service.
 The relief to be sought under the Act.
 Signature of the complainant or his authorized agent.

*...............................................................................................................*

Prepared by

Adv. Mohanraj T P
Faculty of Law
MES College Marampally
Mob: 9745763566