COMPLAN has more protein than HORLICKS: DHC

In a case of comparative advertisement, the Delhi High Court ruled that advertisement is a facet of commercial speech which is protected under the Constitution and the same can be restricted only in accordance with law.

“….advertisement is a facet of commercial speech which is protected by Article 19(1)(a) of the Constitution. The same can be restricted only in accordance with law enacted under Article 19(2) of the Constitution. In a democratic country, free flow of commercial information is indispensable and the public has a right to receive the commercial speech”, the Court said.

The Court was considering a suit filed by Horlicks Ltd (“Horlicks”) for disparagement and unfair trade practices against Heinz India Private Limited (“Heinz”) wherein it was alleged by Horlicks that the advertisement by Heinz for its health food drink COMPLAN deliberately disparaged Horlicks health food drink HORLICKS by claiming that one cup (33 grams) of COMPLAN has the same amount of protein as two cups (54 grams) of HORLICKS.

Stating that the concept of ‘per serving’ size is well recognized not only by the industry but also under the law, the Court said “The reason for recommending a ‘per serving’ size by both the parties on their respective packagings is that consumption of any health food drink in excess of the recommended dietary allowance could distort the macro and micro nutritional requirements of a consumer.”

The Court stated that the impugned advertisement seeks only to compare the protein content in the recommended ‘per serving’ sizes of both products which is factually true and not misleading in any way.

It was further observed by the Court that an advertiser is not obliged to compare all parameters and it is open to an advertiser to highlight a special feature/characteristic of his product which would set its product apart from its competitors and make a comparison with other products, as long as it is true.

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Suit can be filed in a court pertaining to properties situated in jurisdiction of other courts: SC

The Supreme Court of India clarified that for a suit filed in a court pertaining to properties situated in jurisdiction of more than two courts, the suit is maintainable only when suit is filed on one cause of action.

The Court said that Section 17 of Civil Procedure Code can be applied in event where there are several properties, one or more of which may be located in different jurisdiction of courts.

“The word “portion of the property” occurring in Section 17 has to be understood in context of more than one property also, meaning thereby one property out of a lot of several properties can be treated as portion of the property as occurring in Section 17. Thus, interpretation of word “portion of the property” cannot only be understood in a limited and restrictive sense of being portion of one property situated in jurisdiction of two courts”, the Court explained.

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Magistrate not to examine merits of case while taking cognizance: SC

The Supreme Court of India recently reiterated that while taking cognizance of an offence based upon a police report, it is not necessary for the Magistrate to examine the merits and demerits of the case and whether the materials collected is adequate for supporting the conviction.

“….it is not necessary for the Magistrate to examine the merits and demerits of the case and whether the materials collected is adequate for supporting the conviction. The court is not required to evaluate the evidence and its merits”, the Court ordered.

The Court further said, “In case of taking cognizance of an offence based upon the police report, the Magistrate is not required to record reasons for issuing the process. In cases instituted on a police report, the Magistrate is only required to pass an order issuing summons to the accused. Such an order of issuing summons to the accused is based upon subject to satisfaction of the Magistrate considering the police report and other documents and satisfying himself that there is sufficient ground for proceeding against the accused.”

The Court also stated while hearing revision under Section 397 Cr.P.C., the High Court does not sit as an appellate court and will not re-appreciate the evidence unless the judgment of the lower court suffers from perversity.

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Child born out of irregular marriage is entitled to claim share in father’s property: SC

The Supreme Court of India recently clarified that the marriage of a Hindu female with a Muslim male is not a regular or valid marriage, but merely an irregular marriage and any child born out of such marriage is entitled to claim a share in his father’s property.

“….the marriage of a Muslim man with an idolater or fireworshipper is neither a valid (sahih) nor a void (batil) marriage, but is merely an irregular (fasid) marriage. Any child born out of such wedlock (fasid marriage) is entitled to claim a share in his father’s property”, the Court said.

“It would not be out of place to emphasize at this juncture that since Hindus are idol worshippers, which includes worship of physical images/statues through offering of flowers, adornment, etc., it is clear that the marriage of a Hindu female with a Muslim male is not a regular or valid (sahih) marriage, but merely an irregular (fasid) marriage”, the Court added.

The Court mentioned that Muslim law clearly distinguishes between a valid marriage (sahih), void marriage (batil), and invalid/irregular marriage (fasid). “Thus, it cannot be stated that a batil (void) marriage and a fasid (invalid/irregular) marriage are one and the same. The effect of a batil (void) marriage is that it is void ab initio and does not create any civil right or obligations between the parties. So also, the offspring of a void marriage are illegitimate.”

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Actual injury not needed to be an “aggrieved” party under Biometric Act: IL SC

In an important ruling, the Illinois Supreme Court recently held that an individual need not allege some actual injury or adverse effect, beyond violation of his or her rights, in order to qualify as an “aggrieved” person under State of Illinois The Biometric Information Policy Act (“Act”).

“…..an individual need not allege some actual injury or adverse effect, beyond violation of his or her rights under the Act, in order to qualify as an “aggrieved” person and be entitled to seek liquidated damages and injunctive relief pursuant to the Act”, the Court ruled.

“The duties imposed on private entities by section 15 of the Act regarding the collection, retention, disclosure, and destruction of a person’s or customer’s biometric identifiers or biometric information define the contours of that statutory right. Accordingly, when a private entity fails to comply with one of section 15’s requirements, that violation constitutes an invasion, impairment, or denial of the statutory rights of any person or customer whose biometric identifier or biometric information is subject to the breach. Consistent with the authority cited above, such a person or customer would clearly be “aggrieved” within the meaning of section 20 of the Act and entitled to seek recovery under that provision. No additional consequences need be pleaded or proved. The violation, in itself, is sufficient to support the individual’s or customer’s statutory cause of action”, the Court further said.

The Court further stated that the Act vests in individuals and customers the right to control their biometric information by requiring notice before collection and giving them the power to say no by withholding consent. These procedural protections “are particularly crucial in our digital world because technology now permits the wholesale collection and storage of an individual’s unique biometric identifiers —identifiers that cannot be changed if compromised or misused.”

The Court also observed that “when private entities face liability for failure to comply with the law’s requirements without requiring affected individuals or customers to show some injury beyond violation of their statutory rights, those entities have the strongest possible incentive to conform to the law and prevent problems before they occur and cannot be undone. Compliance should not be difficult; whatever expenses a business might incur to meet the law’s requirements are likely to be insignificant compared to the substantial and irreversible harm that could result if biometric identifiers and information are not properly safeguarded; and the public welfare, security, and safety will be advanced. That is the point of the law. To require individuals to wait until they have sustained some compensable injury beyond violation of their statutory rights before they may seek recourse, as defendants urge, would be completely antithetical to the Act’s preventative and deterrent purposes.”

A minor’s mother brought a challenge against an amusement park for collecting her son’s thumbprint without their informed consent in violation of Illinois law.

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Makers of new drugs exempt from price control: Govt.

The Indian Ministry of Chemicals and Fertilizers (Department of Pharmaceuticals) has notified an order amending the Drugs (Prices Control) Order 2013.

Effective January 3, 2019, manufacturers of new drugs patented in India are exempt from price control for a period of five years from the date of commencement of their commercial marketing in India.

The order also stated that drugs for treating orphan diseases as decided by the Ministry of Health and Family Welfare will also be exempt from price control.

Order can be accessed at https://bit.ly/2t4G4RF

Posted in Consumer Law, Drugs Law, General Law, Intellectual Property Law, International Law, patent, patent law, TRIPS | Tagged , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , | Leave a comment

Final rule amending regulations governing H-1B petitions posted: DHS

The Department of Homeland Security (DHS) posted today for public inspection, a final rule amending regulations governing H-1B cap-subject petitions, including those that may be eligible for the advanced degree exemption. The final rule reverses the order by which U.S. Citizenship and Immigration Services (USCIS) selects H-1B petitions under the H-1B regular cap and the advanced degree exemption, and it introduces an electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions. The rule has been published in the Federal Register on Jan. 31, and will go into effect on April 1, though the electronic registration requirement will be suspended for the fiscal year (FY) 2020 cap season.

Effective April 1, USCIS will first select H-1B petitions (or registrations, once the registration requirement is implemented) submitted on behalf of all beneficiaries, including those that may be eligible for the advanced degree exemption. USCIS will then select from the remaining eligible petitions, a number projected to reach the advanced degree exemption. Changing the order in which USCIS counts these allocations will likely increase the number of petitions for beneficiaries with a master’s or higher degree from a U.S. institution of higher education to be selected under the H-1B numerical allocations. Specifically, the change will result in an estimated increase of up to 16% (or 5,340 workers) in the number of selected petitions for H-1B beneficiaries with a master’s degree or higher from a U.S. institution of higher education.

USCIS will begin accepting H-1B cap petitions for FY 2020 on April 1, 2019. The reverse selection order will apply to petitions filed for the FY 2020 H-1B cap season. Petitioners may file an H-1B petition no more than six months before the employment start date requested for the beneficiary. USCIS will provide H-1B cap filing instruction on uscis.gov in advance of the filing season.

Importantly, after considering public feedback, USCIS will be suspending the electronic registration requirement for the FY 2020 cap season to complete user testing and ensure the system and process are fully functional. Once implemented, the electronic registration requirement will require petitioners seeking to file H-1B cap petitions, including those that may be eligible for the advanced degree exemption, to first electronically register with USCIS during a designated registration period. Only those whose registrations are selected will be eligible to file an H-1B cap-subject petition. USCIS expects that the electronic registration requirement, once implemented, will reduce overall costs for petitioners and create a more efficient and cost-effective H-1B cap petition process for USCIS and petitioners.

Additionally, USCIS will publish a notice in the Federal Register to announce the initial implementation of the H-1B registration process in advance of the cap season in which it will implement the requirement. Prior to implementation, USCIS will conduct outreach to ensure petitioners understand how to access and use the system. Once implemented, USCIS will announce the designated electronic registration period at least 30 days in advance for each fiscal year it is required.

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