Testamentary Succession in the state of Goa
The State of Goa is known for its scenic beauty and boasts about the fact that it is the only state in India that has civil laws which are applicable to all faiths ensuring uniformity and parity. Formerly, the civil rights of Goans were only protected by the provisions laid down in the Portuguese Civil Code, 1867; Portuguese Code of Civil Procedure, 1939 and the Family Laws Marriage, Divorce, Children, the Goa Code of Civil Registration, 1912. However, the Government of Goa felt a need to consolidate and amend the laws relating to intestate and testamentary succession, notarial law and other laws relating to partition of an inheritance, etc. and accordingly legislated a new Act known as ‘The Goa Succession, Special Notaries And Inventory Proceeding Act, 2012’ (“Act”). Inheritance under the Act is vast and does not fall within the ambit of a straight jacket formula. The procedures related to the various aspects of inheritance would differ based on the facts and circumstances of every case. This article touches upon an aspect of inheritance i.e. testamentary succession in the State of Goa and provides a basic understanding on the following: A. Succession The Act terms Succession as a process by which deceased’s estate is transferred to the successor(s). It includes testamentary succession i.e when the deceased has left a Will and the same has to be executed and Intestate succession i.e. when the assets devolves upon the heir(s) in absence of a Will. In both cases, in order for the assets to devolve, and for the rights of every heir, legatee and/ or successor, to be determined, an inventory proceeding is instituted and the court is required to adhere to the order of succession as provided in the Act. Order of Succession Legal succession would devolve following order of priority being i) on the descendants, then i) (a) on the surviving spouse, then ii) on the ascendants subject to the provisions of sub section (2) of Section 72, then iii) on the brothers and sisters and their descendants, then iv) on the collaterals upto the sixth degree, and then v) on the State, provided that, in the absence of testamentary or intestate heir of a beneficial owner or of an emphyteusis, the property shall revert to the direct owner i.e, if a beneficial owner dies without leaving a Will or does not have any heirs, the property will revert back to the State. B. Proceedings for the execution of Will of the Deceased. Inventory Proceeding An inventory proceeding is a proceeding to partition the inheritance of the deceased person or to obtain a formal order of inheritance by the Court. It is initiated for executing a Will or, in its absence, to determine the asset distribution. Inventory proceedings are classified into two which are the following: When the estate leaver leaves behind a spouse or heirs who are legally incapacitated, absent, unidentified, or minors, the division of assets will occur by instituting an inventory proceeding only. When the Interested parties (hereinafter defined) do not fall within the ambit of a mandatory inventory, they may opt for inventory proceedings to partition the inheritance. Jurisdiction The place of opening of the inheritance shall be established in the following manner: Procedure for Inventory for execution of Will An Inventory proceeding is instituted by the Interested party (hereinafter defined) in person or through a constituted attorney. “Interested Party” is the heir, moiety holder (spouse) of the deceased, executor in a Will where there is a minor, interdicted (person who is declared to be incompetent to manage his/her assets by the order of the court) or absent heirs or legatees and the person who have a the right to usufruct of a part of the inheritance without specifying its value or thing and also the executor. Set out below is the procedure for instituting an inventory proceeding for the execution of a Will where the Interested Parties mutually consent to the same. Steps Stage Explanation 1. Filing of the Inventory Proceeding and appointment of Head of Family (Cabeca de Casal) A petition is filed along with the death certificate of the estate leaver; self attested Aadhaar Cards and /or Pan Cards of the Petitioner and Interested Parties in order to substantiate the relationship with the estate leaver; marriage certificate of the deceased person along with the marriage certificate of the Interested Parties to the inventory proceeding; anda Will. If the death of the estate leaver is not registered, then the burial certificate is produced along with affidavits sworn by three witnesses on oath stating that they were present when the estate leaver died.Upon institution of such petition for inventory proceedings, the court shall appoint the eldest member of family to be the head of the family provided he/she has not attained the age of 70 years. However, if there are no other heirs, to represent the deceased then he/she can be appointed as head of family in assisting the court wherein he/she shall be bound to make declaration on oath pertaining to the death of the estate leaver; place of death, details of the Interested Parties;details of testamentary disposition i.e., Will;anti – nuptial agreement; and / oradditional documents may be produced depending on the nature of the case. 2. Summons When the court is satisfied that the inventory is maintainable and that the estate leaver is governed by the laws of the state of Goa, it shall fix a date for the submission of the list of assets and shall issue notices to all of the Interested Parties intimating about the initiation of the inventory proceedings and such Interested party may participate and render their say/objections to the proceedings within a period of 30 days from receipt of the notice along with the relevant documents which ensures a fair judicial process.If there are unknown legatees and creditors, they shall be served by substituted service by affixing the summon in some conspicuous place in the court.If the Interested Parties wish to execute the Will mutually, then the Interested Parties would appoint
Overview of Make in India Policy- Telecom Sector
1. BACKGROUND 1.1 The Make in India initiative started in the year 2014 aimed to establish India as a global manufacturing hub, fostering self-sufficiency and competitiveness. It encourages suppliers to the Government to have adequate local content, promoting local manufacturing and sourcing of goods/services by the Indian Government. Further it was aimed to encourage local manufacturing, including incentivizing foreign companies to establish manufacturing units in India. 1.2 The Department of Industrial Policy & Promotion (“DIPP”) of the Ministry of Commerce and Industry issued the Public Procurement (Preference to Make in India), 2017 (subsequently modified by revision orders dated 4th June 2020,16th September 2020 and 19th July 2024) (hereinafter referred as the “General Order”) to encourage Indian and global companies to increase the development, production, manufacturing, and assembly of products made in India with a view to enhancing income and employment. 1.3 Accordingly, the Ministry of Communications- Department of Telecommunications (“DOT”), governs the technology and infrastructure of the telecom sector that facilitates communication across the country. The Telecom Sector is broadly divided into the following sub-sectors, viz. (i) Infrastructure, (ii) Equipment, (iii) Mobile Virtual Network Operators, (iv) White Space Spectrum, (v) 5G, (vi) Telephone service providers and broadband. 1.4 DOT has issued a separate notification dated 29th August 2018 of a list of telecom products, services, and works for their purchase preference from local suppliers for public procurement vide notification dated 29th August 2018 (“DOT Specific Order”). The General Order and the DOT Specific Order combined govern purchase preference in the Telecom Sector. Ministry-specific orders and tender requirements take precedence over the General Order. The General Order and the DOT Specific Order requires products to be fully manufactured in India and mandates local suppliers to manufacture equipment from the component level in India and develop local vendor networks for raw materials, components, and parts. 1.5 This article gives an overview of the Make in India policy of the government concerning the Telecom Sector. 2. HIGHLIGHTS OF MAKE IN INDIA 2.1 Categorisation of Supplier. Suppliers or service providers are categorized under the General Order based on Local Content as follows – (i) Class-I LS: Local Content ≥ 50%, (ii) Class-II LS: Local Content ≥ 20% but < 50%, (iii) Non-Local Supplier: Local Content < 20%. 2.2 Eligibility for bidding. Per the General Order, bidding eligibility hinges on local capacity and competition. Under Clause 3(a) of the General Order, if sufficient local capacity and competition for particular goods or services is communicated by specific Ministry/Department, only Class-I LS is eligible to bid irrespective of the purchase value. In pursuance of Clause 3(a) of the General Order, the DOT has issued the DOT Specific Order which provides a list of products that have sufficient local capacity and provide for percentage of minimum local content(MLC) against each item. In this sense, for the Telecom products that are included in the DOT Specific Order, the local content requirements as given in the DOT specific Order shall be adhered to. Furthermore, the DOT Specific Order also provides for a “Preference to Make in India” index(PMI) which provides that for a certain percentage (as indicated against each item) the government authority is bound to purchase from local suppliers having MLC. For other telecom products and services which are not mentioned in the DOT Specific Order as having sufficient local capacity, Class-II Local Suppliers or Non Local Suppliers are eligible to bid depending upon the requirements of the tender. However, Class-I will get preference over Class-II Local Suppliers or Non-Local Suppliers. 2.3 Local content (i) Meaning of Local Content and its components Under the General Order, Local Content is defined as the amount of value added in India which shall, unless otherwise specified by the Nodal Ministry, be the total value of the item procured (excluding net domestic indirect taxes) minus the value of imported content in the item (including all customs duties) as a proportion of the total value, in percent. The following are excluded from the calculation of local content-(a) imported items sourced from resellers and distributors, (b) license fees/royalties paid/technical charges paid out of India, (c) repackaged, refurbished and rebranded products, (d) transportation, insurance, installation, commissioning, training, and after-sales support like AMC/CMC Cost for Assembly/Integration/Testing as local content-When assembling, integrating or testing a final product,10% of its cost can be counted as “local content,” but if only a system or a sub-system of a product is being assembled/integrated/tested, 10% of the system/sub-system’s cost can be calculated as a local content. Design as local content-The DOT Specific Order also mentions that the design (comprising hardware design and software design and development) of a Telecom product can also become a component while calculating the local content on the following two conditions: (a) Intellectual Property Right resides in India for Hardware Design, (b) The copyright is in India for the Software Design and Development. (ii) Calculation of Local Content Local content = (Sale price – Value of imported content) * 100/ Sale price Where – (a) “Sale price” means the price of the item minus net domestic indirect taxes (for instance – excise duty, goods, and service tax, etc.); and (b) “Value of imported content” means the price of imported content including all customs duties. Further, please note that the above formula is a basic formula provided in the General Order and practically it has been observed that each tender would specify their respective formulas to be used towards the calculation of Local Content. (iii) Verification of Local Content With reference to the verification of the percentage of Local Content, a self-certification for any procurement below INR 10 Crores and a certificate from the statutory auditor or cost accounting indicating the percentage of Local Content for any procurement above INR 10 Crores is required to be submitted by the bidder. The tenders can provide for different requirements for a certification. Practically, it has been observed that local content certification is an ongoing process and the percentage of the local content can be required to be certified even after
The Legal Landscape of Indian Business: Navigating Legal Complexity with Ease
Introduction India has become the 5th largest economy in the world ranking by enabling local manufacturing, relaxed foreign direct investments policies, attractive government initiatives and incentives to business owners, and much more. With India’s vast consumer base and accelerating economy, India presents an opportunity for foreign companies/investors to expand their global presence in India. Moreover, Reserve Bank of India in its March 2024 bulletin, issued that India had an inflow of US$59.5 billion in foreign direct investments from April 2023 to January 2024. In this article, we will deep dive into the important aspects of doing business in India, along with a legal perspective of Indian laws. To start with, one should be aware of the advantages of doing business in India, some of which are as follows: Legal perspective of doing business in India From a legal perspective, doing business in India entails navigating a complex regulatory landscape influenced by diverse laws and regulations. Understanding and complying with Indian laws, including those governing company formation, taxation, labor, intellectual property, and contract enforcement, is crucial for local business owners and foreign investors. India’s legal system, based on English law principles, offers a robust framework for resolving commercial disputes, although judicial backlog remains a challenge. Additionally, recent reforms aimed at enhancing the ease of doing business, such as the introduction of commercial courts and online dispute resolution mechanisms, signify a commitment to improving the business environment. Engaging competent legal counsel, maintaining compliance with regulations, and staying abreast of legal developments are essential strategies for mitigating risks and ensuring successful business operations in India. Let us break down some factors for you: We hope that this information is helpful to anyone seeking introductory information on commencing and conducting business in India and on gaining a legal perspective about doing business in India. The information contained in this article is intended solely to provide general guidance on matters of interest for the personal use of the reader, who accepts full responsibility for its use. The application and impact of laws can vary widely based on the specific facts involved. As such, it should not be used as a substitute for consultation with a competent adviser. Before making any decision or taking any action, the reader should always consult a professional adviser relating to the relevant article posting. – Aaron Solomon Managing Partner, Solomon & Co. About Solomon & Co. Solomon & Co., (Advocates & Solicitors) was founded in 1909 and is amongst India’s oldest law-firms. The Firm is a full-service firm that provides legal service to Indian and international companies and high net-worth individuals on all aspects of Indian law.
Key Changes under the Foreign Direct Investment Policy (“FDI Policy”) on the Space Sector
Background India accounts for only 2 percent of the currently valued global space economy which is about USD 360 billion despite being among the few spacefaring nations in the world. The Union minister of the State (Independent Charge) for Science and Technology, Dr. Jitendra Singh while inaugurating the IN-SPACe Technical Centre, stated that their target is to take the space economy from 2 percent to 10 percent by the year 2030, targeting a five-fold increase. The vision is to have a 15 percent share in the global space economy by 2047. To realize this vision, there was a need to provide scope for Non-Governmental Entities to participate in the Indian space program and play a key role in boosting India’s market share in the Global Space Economy. In India, players in the private sector industry have been very limited to being vendors or suppliers to the government’s space program. The need to promote private entities to establish themselves as independent players was also emphasized. The Indian Space Policy 2023 was notified as an overarching, composite, and dynamic framework to implement the vision for unlocking India’s potential in the Space sector through enhanced private participation. This policy aims at augmenting space capabilities; enabling, encouraging, and developing a flourishing commercial presence in space; using space as a driver of technology development and derived benefits in allied areas; pursuing international relations, and creating an ecosystem for effective implementation of space applications among all stakeholders. The Government of India to foster growth and innovation and with the vision to promote ease of doing business facilitating greater participation by foreign investors in the Space sector of the economy decided to liberalize the FDI Policy by prescribing liberalized thresholds for various sub-sectors/activities. These amendments to the Policy are expected to attract more foreign and domestic investment in India’s booming space industry. Extant FDI Policy on the Space Sector: 100% FDI was permitted in the establishment and operation of Satellites only through the Government Approval route. Further, such foreign investments were subject to the sectoral guidelines of the Department of Space/ISRO. New Policy on the Space Sector: The Department for Promotion of Industry and Internal Trade (“DPIIT”) vide a Press Note announced the review of the FDI Policy on the Space sector in India to streamline the FDI regulations and pave the way for enhanced participation and collaboration in various segments of the space industry. The proposed reforms seek to provide clarity for FDI in Satellites, Launch Vehicles, and associated systems or subsystems, the Creation of Spaceports for launching and receiving Spacecraft, and manufacturing of space-related components and systems. Pursuant to the significant amendments, now the satellites sub-sector has been divided into three different activities with defined limits for foreign investment in each such sector, subject to the sectoral guidelines issued by the Department of Space from time to time, as follows – (a) For Manufacturing and Operations, Satellite Data Products, and Ground Segment and User Segment, investments up to 74% fall within the Automatic Route, while investments beyond 74% will fall within the Approval Route, i.e. require Government Approval; (b) For Launch vehicles and associated systems and subsystems, Creation of Spaceports for launching and receiving Spacecrafts, investments up to 49% fall within the Automatic Route, while investments beyond 49% will fall within the Approval Route, i.e. require Government Approval; (c) For Manufacturing of components and systems/sub-systems for satellites, ground segment, and user segment, investments up to 100% fall within Automatic Route and there is no requirement of Government approval. Further, the amended policy provides clear definitions of various activities within the space sector including satellite manufacturing and operations, satellite data products, ground segment, user segment, launch vehicles, creation of spaceports, and manufacturing of components and systems/subsystems. Conclusion: Evidently, this policy is the Government’s attempt to encourage investment, innovation, and technology transfer in the Space sector through the private sector. It is aimed at bringing about a new era of opportunities and growth in India’s space industry. With the enhanced contribution from both domestic as well as foreign investors, the country can strengthen its position in the global market as a global hub for space technology and innovation. The increased private sector participation would help in generating employment and enabling modern technology absorption enabling companies to set up their manufacturing setups in India duly encouraging the Make in India (MII) initiative of the Government. The information contained in this article is intended solely to provide general guidance on matters of interest for the personal use of the reader, who accepts full responsibility for its use. The application and impact of laws can vary widely based on the specific facts involved. As such, it should not be used as a substitute for consultation with a competent adviser. Before making any decision or taking any action, the reader should always consult a professional adviser relating to the relevant article posting. – Kinjal Champaneria, Partner, and Shakshi Bafna, Associate, Solomon & Co. About Solomon & Co. Solomon & Co., (Advocates & Solicitors) was founded in 1909 and is amongst India’s oldest law firms. The Firm is a full-service firm that provides legal services to Indian and international companies and high-net-worth individuals on all aspects of Indian law.
Unauthorized Possession and Mesne Profits: Legal Implications and Analysis
1. Introduction: 2. Genesis of Mesne Profits: 3. Unauthorized Possession in Mesne Profits: 4. Concluding Reflections: Shruti Mehta, Associate, Solomon & Co. About Solomon & Co. Solomon & Co. (Advocates & Solicitors) was founded in 1909 and is amongst India’s oldest law-firms. The Firm is a full-service firm that provides legal service to Indian and international companies and high net-worth individuals on all aspects of Indian law. “Disclaimer” The information contained in this article is intended solely to provide general guidance on matters of interest for the personal use of the reader, who accepts full responsibility for its use. The application and impact of laws can vary widely based on the specific facts involved. As such, it should not be used as a substitute for consultation with a competent adviser. Before making any decision or taking any action, the reader should always consult a professional adviser relating to the relevant article posting. Copyright © 2020 Solomon & Co., All rights reserved.
Reverse CIRP: Breathing New Life into Distressed Assets
1. Introduction: 2. Overview of Reverse CIRP: This article proceeds to discuss the process of Reverse CIRP, its defects, and how an ex-ante regulatory regime would work in its betterment. The Deficiencies in the Present Regime: The need for an ex-ante Approach: Conclusion: Nishka Shah, Associate, Solomon & Co. About Solomon & Co. Solomon & Co. (Advocates & Solicitors) was founded in 1909 and is amongst India’s oldest law-firms. The Firm is a full-service firm that provides legal service to Indian and international companies and high net-worth individuals on all aspects of Indian law. “Disclaimer” The information contained in this article is intended solely to provide general guidance on matters of interest for the personal use of the reader, who accepts full responsibility for its use. The application and impact of laws can vary widely based on the specific facts involved. As such, it should not be used as a substitute for consultation with a competent adviser. Before making any decision or taking any action, the reader should always consult a professional adviser relating to the relevant article posting. Copyright © 2020 Solomon & Co., All rights reserved.
CPC and Trademarks Act: Demystifying Jurisdiction Clauses
Introduction Mischief Rule of Interpretation Through this interpretative lens, it becomes apparent that the jurisdiction clauses in these acts are plaintiff-centric. They aim to address the inconvenience and costs faced by injured parties, encouraging them to seek relief more conveniently and efficiently, thereby promoting access to justice. Notably, the geographical location of the defendants and the place where the cause of action arises are irrelevant in such cases. Sections 134(2) and 62(2) do not make any reference to the location of the cause of action or the defendants’ whereabouts. However, challenges such as forum shopping and inconsistencies in the interpretation and application of trademark laws persist. These challenges underscore the need for continued review and refinement of jurisdictional provisions to ensure fairness and consistency in the adjudication of trademark disputes. Indian Performing Right Society Ltd. v. Sanjay Dalia, Burger King Corporation v. Techchand Shewakramani & Ors Manugraph India Ltd v. Simarq Technologies Pvt Ltd & Ors Conclusion The divergent interpretations of jurisdictional provisions by the Bombay and Delhi High Courts highlight the ongoing judicial effort to balance convenience for plaintiffs with fairness to defendants in intellectual property disputes. The rulings underscore the need for clarity and consistency in applying these legal principles. As seen in the case of Manugraph India Ltd v. Simarq Technologies Pvt Ltd & Ors, the Bombay High Court allowed jurisdiction based on the location of the plaintiff’s principal place of business, emphasizing the intent to prevent misuse of remote subordinate offices. In contrast, the Delhi High Court’s decision in the case of Ultra Home Construction Pvt. Ltd. v. Purushottam Kumar Chaubey & Ors focused on the cause of action, requiring suits to be filed where it arose. Thesediffering approaches reflect the complex nature of jurisdictional issues and the necessity for continuous legal refinement. Moving forward, it is imperative for the judiciary to harmonize these interpretations to ensure equitable access to justice and efficient resolution of intellectual property disputes, fostering a legal environment that supports both plaintiffs and defendants. Nishka Shah, Associate, Solomon & Co. About Solomon & Co. Solomon & Co. (Advocates & Solicitors) was founded in 1909 and is amongst India’s oldest law-firms. The Firm is a full-service firm that provides legal service to Indian and international companies and high net-worth individuals on all aspects of Indian law. “Disclaimer” The information contained in this article is intended solely to provide general guidance on matters of interest for the personal use of the reader, who accepts full responsibility for its use. The application and impact of laws can vary widely based on the specific facts involved. As such, it should not be used as a substitute for consultation with a competent adviser. Before making any decision or taking any action, the reader should always consult a professional adviser relating to the relevant article posting. Copyright © 2024 Solomon & Co., All rights reserved.
Section 9 (2) of the Arbitration & Conciliation Act, 1996: A voluntary / mandatory provision?
Introduction Conclusion Nikhilesh Koundinya, Associate, Solomon & Co. About Solomon & Co. Solomon & Co. (Advocates & Solicitors) was founded in 1909 and is amongst India’s oldest law-firms. The Firm is a full-service firm that provides legal service to Indian and international companies and high net-worth individuals on all aspects of Indian law. “Disclaimer” The information contained in this article is intended solely to provide general guidance on matters of interest for the personal use of the reader, who accepts full responsibility for its use. The application and impact of laws can vary widely based on the specific facts involved. As such, it should not be used as a substitute for consultation with a competent adviser. Before making any decision or taking any action, the reader should always consult a professional adviser relating to the relevant article posting. Copyright © 2020 Solomon & Co., All rights reserved.
Early Neutral Evaluation – A Much-Needed Form Of Alternate Dispute Resolution In India
TABLE OF CONTENTS Abstract 2 List of Abbreviations 3 List of Statutes 4 List of Cases 5 Statement of Problem 6 Research Objectives 6 Research Questions 6 Scope and Limitation of the Research 6 Research Methodology 7 Literature Review 7-10 Scheme of Chapters 10-11 Chapter 1: Introduction 12-15 Chapter II: What is ENE? 16-19 Chapter III: Comparative Analysis between India, U.S. and U.K. 20-25 Chapter IV. Way Forward and Proposed Reforms 26-27 Chapter V: Conclusion 28 Bibliography 29-32 ABSTRACT The National Judicial Data Grid has as on 27th April 2024 revealed a staggering number of more than Four Crore pending civil and criminal cases in India, showcasing the immense strain on the country’s judicial system. Amidst this, Alternate Dispute Resolution has emerged as a prominent method that encourages and ensures early resolution of disputes. A key reason behind the widespread adoption of Alternate Dispute Resolution is its ability to offer parties a faster and more cost – effective way to resolve disputes compared to traditional litigation. Alternate Dispute Resolution also provides more flexibility and control to the parties involved in finding mutually agreeable solutions. While the traditional ADR methods are arbitration, mediation and conciliation are well known and legislatively recognized there are other forms of ADR slowly permeating in the judicial systems around the world such as Dispute Resolution Boards, Mini-Trials, Ombudsman, Expert Determination etc. This paper studies one of the emerging form of dispute resolution, i.e., Early Neutral Evaluation (“ENE”). ENE is a voluntary procedure used in the early stages of the dispute i.e., begins; before the litigation process begins; however, it can also be considered by the parties after the litigation process is initiated. During the ENE process a neutral party reviews the issues and facts as presented by the parties and provides a frank assessment of some or all aspects of the case. The paper studies the growth of ENE and its journey from inception to being one of the most relied upon forms of dispute resolution in U.S.A. and U.K. The paper goes on to address the need for introducing ENE in India and further explains as to how the same is already incorporated implicitly under the Civil Procedure Code, 1908. The paper concludes with how ENE can help in tackling pendency of cases in India and how the said technique would assist in streamlining multiple matters. LIST OF ABBREVIATIONS ADR Alternative Dispute Resolution U.S. United States of America U.K. United Kingdom NJDG National Judicial Data Grid DBs Dispute Boards ODR Online Dispute Resolution ENE Early Neutral Evaluation v. Versus Ors. Others Anr. Another LIST OF STATUTES LIST OF CASES While the U.S. and U.K. legal landscape has adopted ENE in its laws to resolve disputes and differences between the parties, India though having recognized ENE has not taken any action to include the said method within its legislative landscape. The thesis makes a novel attempt at describing what ENE is, how is it different from other forms of dispute resolution, some of the characteristics of ENE which make it a much-needed method in the dispute resolution landscape of India and the ways in which the same may be included in the legislative landscape of India going forward. The main objectives of the present thesis are as under: The present thesis deals with the concept and working of ENE. The researcher has confined his study to the understanding of ENE and examining its applicability to the Indian judicial landscape. The researcher has further limited his research to three key jurisdictions, India, U.K. and U.S.A. Research Techniques: While conducting the research, the thesis is firmly doctrinal in its methodology as it entails an analysis of legal materials that support the research and analysis, the relevant legal texts to interpret what law exists regarding the particular context. The thesis also incorporates a comparative approach to compare legal rules from different jurisdictions to find the best solutions. The comparative methods also allow for the identification of differences and similarities in legal concepts. Collection of Data It includes the analysis of various statutes, judicial decisions and study through reasoning by referring to articles, books, journals, case laws, websites and magazines. The primary source of data collection used by the researcher is the judgments, legislations and reports. The secondary source of data collection used by the researcher is articles from reliable sources like SSRN, Kluwer arbitration, books, journals, newspapers, literature information, articles, reports, web sources and authentic dictionaries. It includes analysis of the statues and studies through reasoning by referring to articles, journals, case laws and websites. For this thesis, the literature review explores the meaning of ENE through various papers and looks at the use of ENE in foreign jurisdictions. For this thesis, the researcher has relied on the Bluebook (20th edition) style of citation uniformly throughout. The outcome of the Literature Review: The review of literature has been extremely helpful to understand the method of ENE and its functioning. Further, the review has helped to understand the benefits of adopting the method of ENE in the legislative landscape of India which will be extremely useful in proposing methods and reforms on inclusion of ENE to India. The present thesis is divided into the following headings: Chapter- I Introduction The introduction chapter gives a brief introduction to the topic of the thesis. It also includes the objective, scope, limitations, significance, utility, research questions and hypothesis. It also deals with the methodology adopted to carry out the research. Chapter- II What is ENE? The said chapter introduces the concept of ENE and iterates on how the same was discovered. It also provides a brief description on where the concept was promulgated in the beginning and its results. Chapter- III Comparative Analysis between India, U.S. and U.K. The said chapter discusses the use of ENE in U.S. and U.K. and compares the same with India. It further looks at the laws of U.S. and U.K. as observes as to how the said countries apply ENE to reduce the dependency on courts
Yusuf Dikec’s Viral Shooting Stance: A Unique Intersection of Sports and Intellectual Property.
Introduction: Yusuf Dikec, a silver medallist in the Mixed Air Pistol event at the 2024 Paris Olympics, has not only made waves in the competitive sports arena but is now pushing the boundaries of intellectual property law. His attempt to trademark his viral shooting stance is a fascinating blend of personal branding and legal strategy. This groundbreaking effort demonstrates how sports and branding can converge in unprecedented ways, challenging traditional notions of intellectual property in sports. Dikec’s trademark journey is more than just a legal battle; it’s a pivotal moment in the sports industry. By seeking to protect his stance, he is opening doors for athletes to brand themselves beyond conventional methods, leveraging personal styles and movements as assets. With the advent of digital platforms and NFTs (non-fungible tokens), Dikec’s stance could even be turned into a digital certificate of authenticity, allowing him to further enhance its commercial value. This innovative intersection of sports, law, and digital assets could set a precedent for how athletes monetize their uniqueness in the evolving digital economy. Trademark Law Fundamentals Unveiled: Trademark law serves as a powerful tool to protect unique signs, symbols, or designs, distinguishing them as exclusive identifiers for products or services. For Dikec, the challenge lies in proving that his shooting stance is not only a functional element of his sport but also distinct and original enough to qualify for trademark protection. The legal journey revolves around three primary elements: 1. Proving Distinctiveness: For Dikec to succeed, he must prove that his shooting stance is inherently distinctive and clearly associated with him. Trademark law demands that a trademarked stance must stand out from the generic postures commonly used in sports. If Dikec’s stance is too similar to conventional shooting poses, his application may be denied. This distinctiveness must be so strong that when people see the stance, they instantly think of Dikec, much like Michael Jordan’s “Jumpman” logo. 2. Asserting Originality: To achieve trademark status, Dikec’s stance must transcend its functional role in the sport. If the stance is viewed as providing a competitive advantage or merely serving a practical function, it may be rejected on the grounds of functionality. Originality, in this case, must be rooted in creativity and branding rather than utility. 3. Graphical Representation: One of the key hurdles in registering an unconventional trademark like a stance is providing a clear, detailed graphical representation. This involves precise descriptions and visuals to ensure the stance is identifiable and distinguishable from similar moves. For Dikec, this may mean submitting a variety of media, including images or sketches, to showcase his stance in a way that ensures no confusion with other athletes’ actions. Unconventional trademarks such as colours, smells, or even sounds face similar challenges in achieving registration, as they must be clearly defined to avoid confusion. Whether it’s an iconic pose or a specific colour combination, clarity and uniqueness in graphical representation are essential for trademark success. Some Examples of Trademark in Sports: Dikec’s effort to trademark his stance joins a growing list of athletes who have successfully utilized intellectual property laws to protect their personal brands. Here are some notable examples: 1. Michael Jordan’s Jumpman Logo: Jordan’s iconic leaping silhouette, featured on Nike’s Air Jordan apparel, is perhaps the most famous example of an athlete securing a trademark for a personal pose. The Jumpman logo has become a global symbol, showcasing how an athlete’s stance can transcend sports and become a commercial powerhouse. 2. Jerry West’s NBA Logo Stance: While Jerry West himself did not register the logo, his silhouette has been immortalized in the NBA’s branding. His stance is recognized worldwide and has become synonymous with the league, demonstrating the lasting impact an athlete’s image can have on sports branding. 3. Usain Bolt’s Lightning Pose: Usain Bolt’s “lightning bolt” victory pose has become iconic. Bolt has successfully trademarked this celebratory move in multiple countries, including Jamaica, the U.S., China, and the EU. His ability to monetize and protect his stance underscores the growing trend of athletes turning personal gestures into marketable assets. 4. Cristiano Ronaldo’s CR7 Brand: Ronaldo has trademarked not only his name but also his initials and jersey number (CR7). His celebratory pose, alongside his signature branding, has helped him build a global empire. 5. Gareth Bale’s “Eleven of Hearts” Gesture: Bale trademarked his distinctive heart-shaped hand gesture, which has become part of his personal branding. This move has been used on merchandise, including hats and jewellery, further emphasizing how trademark law can be applied to celebratory actions. These examples highlight how athletes can effectively use trademark law to secure their place in sports history and monetize their unique qualities. However, securing these trademarks is often difficult, as they must meet the criteria of distinctiveness, graphical representation, and source identification. Legal Challenges and Strategic Considerations: As Dikec ventures into the world of international trademark law, he faces a multitude of legal challenges. Trademark laws are territorial and differ from country to country, and each jurisdiction sets its own standards for distinctiveness and originality. Dikec will need to develop a strategic approach to navigate these complexities. Beyond registration, proactive monitoring and enforcement are crucial. Trademark protection is not just about securing the initial registration; it requires continuous vigilance to prevent unauthorized use. Athletes like Dikec must be prepared to enforce their trademark rights globally, especially in today’s interconnected world where digital platforms make it easier for others to replicate and misuse distinctive elements. Dikec’s potential use of NFTs adds another layer of complexity, as it introduces a new realm for trademark protection. NFTs can be used to authenticate and monetize digital assets, including personal gestures, but they also open up new challenges in terms of legal enforcement, licensing, and intellectual property rights. Conclusion: Yusuf Dikec’s quest to trademark his shooting stance represents a pivotal moment in the evolving relationship between sports and intellectual property. His journey could set a precedent for how athletes use trademark law to protect not just their names or logos, but their
