Designs are attractive features which can be of different shapes and sizes. Designs enhances the beauty of any entity. However, have you ever thought that the designs also need protection?

It needs protection from being copied either by its competitors or from anyone. It shall be registered under a regulation for the protection.

Under the Indian law, the designs regulation and protection are governed by the Designs Act, 2000 and the Design Rules which was enacted in 2001. It was additionally amended by the Designs (Amendment) Rules, 2008 and Design (Amendment) Rules, 2014.

How designs are protected and why are the protected shall be discussed in the latter part of the article.

DESIGN DEFINITION

Section 2(d) of the Designs Act, 2000 defines design. The section states “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; but does not include any mode or principle of construction or anything which is in substance a mere mechanical device”.

Designs are significant for any product or entity as in it expresses a clear image of a product and glorifies its beauty.

WHAT ARE THE ESSENTIALS OF DESIGN REGISTRATION?

The following are the essential requirements of design which needs to be fulfilled“

• Before the design registration or date of application, the designs should be unused or unpublished previously in any country. Hence, the designs are to be original and new.
• The core of the designs are the characteristics that are showcased through shapes, size, compositions or patterns that are applicable to the entity.
• Artistic work, trademark or property works are excluded from the requirement.
• There must be significant different from your design and the other already registered designs. If the designs are have similar features or looks alike even though with a slight difference will not qualify for the registration.

WHO CAN APPLY?

Any person or the legal representative or the assignee can apply separately or jointly for the design registration. “Person” includes firm, partnership, small entity or body corporate. The application can filed through an agent, in this case a power of attorney would be required to be filed.

NEED

Registering the design helps in protecting the designs from counterfeiting. Counterfeiting means copy or imitate any object with the intention of stealing or destroying the original thing. It protects the objects by complying with the Designs Act, 2000 at the Office of Controller General of Patents, Designs and Trademarks.

The main aim of registration of designs is to provide the owner of the design the exclusive rights to exploit the designs and then use it for commercial purposes. Only filing an application does not guarantee the registration of designs, before allowing it the registrar considers various facts.

PROCESS

Prior to Design Registration Process, it is important to note that the registration of designs can be applied at five different authorities.

• Controller Designs Patent Office in Kolkata
• Patent Office in Delhi
• Patent Office in Mumbai
• Patent Office in Chennai
• Patent Office in Ahmedabad

At any one of the four offices mentioned above, if an application is submitted, the same is redirected to the Kolkata office.

The following is the procedure for the design registration:

• Filing of application- the application should be filed in Form 1 along with documents that are name of the applicant and address of the applicant.
• Nationality of the applicant- in case the applicant is not a natural person, for example, a company, information such as the place of incorporation and the legal status of the entity are to be included and the required applicable fee.
• The class and sub-class of the article under the Locarno Classification embodying the design.
• The name of the entity for the design applies.
• Design representation-
  • If the design’s dimension is two, two copies of the design are to be submitted.
  • If the design’s dimension is three, two copies of the design from the outlook of the front, back, top, bottom, and the two sides must be submitted.
• The different and unique characteristics of the object should be highlighted in the application, that is different from the other existing objects.
• Where the application is made for registration in more than one class, each level of registration should have a different application.
• Statement of disclaimer or novelty needs to be affixed for the mechanical process trademarks, numbers, letters and etc. This must be duly signed and endorsed and dated on each representation by the applicant or the authorized person as a representative of the applicant.
• Following submission of the applicant, the patent office will examine the application and will put up objections, if any. Consequent to clearance of all the objections, a copyright certificate should be granted by the patent office to the design.
• Validity of the design registration- the design registration shall be effective for ten years from the date of registration.
• The term of registration can be expanded by another five years before the expiry of the first ten years by the submission of the application through Form-3 and reimbursing a fee of Rs. 2000.

DOCUMENTS REQUIRED

The following are some of the documents required when registering a design:

1. Applicant’s name and his address.
2. Applicant status i.e., whether natural person or legal person (company).
3. In case of start-ups the applicant should provide a certificate of registration.
4. The description of the article needs to be filed by the applicant along with the identification of the class as per the classification.
5. Minimum of 4 images or drawings of the article from every angle needs to be filed together with the application.
6. Power attorney, if filed by an agent.

ADVANTAGES

• As a design enhances the beauty of any article or entity, it makes it attractive and appealing which also increases its commercial value and marketability of the product. Therefore, whenever a design is protected the owner can sue a person or company who copy the design of the original product.
• The registration of the design protects the image or diagrammatic representation of the product.
• A unique design adds a creative in the product which add value to it and also add an individual character to the product.
• It provides a legal shield and protects the design from being counterfeit which is of paramount importance.

CONCLUSION

From the above stated reasons and facts, it is concluded that registering a design it important not only to protect the design but also gives the owner a right and showcases the owner’s creativity and originality. Therefore, any new design must be registered to avoid any issues thereafter.

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INTRODUCTION

Ombudsman Scheme for Digital Transactions, 2019 (“the Scheme”) was established by the Reserve Bank of India (RBI). This scheme is a speedy and cost-free apex level mechanism for the resolution of the complaints of the customers who have undertaken the digital transactions. It came into effect from 31^st January, 2019 and it extends to the whole of India. The Scheme applies to the business in India of the System Participants.

WHAT IS A DIGITAL TRANSACTION?

Digital transaction as expounded under Clause 3 of the Scheme means “a payment transaction in a seamless system effected without the need for cash at least in one of the two legs, if not in both. This includes transactions made through digital/electronic modes wherein both the originator and the beneficiary use digital/electronic medium to send or receive money.” In other words, it means a transaction of payment in electronic mode without the need for cash.

OMBUDSMAN FOR DIGITAL TRANSACTIONS

Who is an Ombudsman?

Ombudsman for digital transaction (“Ombudsman”) means an officer of RBI who is appointed under Clause 4 of the Scheme. The definition of the same is defined in Clause 3(6) of the Scheme. He passes an award for the complaint made with respect to the Scheme.

Appointment of an Ombudsman

The RBI appoints one or more of its officers for the rank of Chief General Manager or the General Manager who is known as Ombudsman for digital transactions. He carries out the duties which are given to them by or under the Scheme.

What is his tenure?

The appointment of the Ombudsman is made for a period of not exceeding three years at a time.

How many Ombudsman are appointed and where are they located?

To date, there are 21 Ombudsman have been appointed with their offices in the state capitals mostly. Annexure I of the Scheme provides the details of the offices such as address and contact details.

Secretariat to the Ombudsman

Secretariat means an office constituted under Clause (1) of the Scheme. The Clause states that the RBI deputes a number of officers or other staff to the office of the Ombudsman because it is considered mandatory to act as the secretariat to the Ombudsman.

Jurisdiction, Power and Duties

The territorial limits of the Ombudsman are specified by the RBI to which the authority of each Ombudsman shall extend.

OBSERVATIONS OF THE SCHEME

• The objective of the Scheme is to provide speedy and cost-free complaint redressal for deficiency in customer services that are offered in the digital transactions which the non-bank entities regulated by RBI conducts.
• The main aim of this Scheme is to reduce fraud and ensure that the customers are trusting the terms of digital payments.
• The Scheme also witnesses in digital transactions a quantum leap and also monitors it by nullifying the threats that are present.

ENTITIES COVERED UNDER THIS SCHEME

The Scheme applies to System Participants defined under Clause 3(11) of the Scheme. The Clause states that a person excluding a bank who is participating in a payment system under Section 2 of the Payment Settlement Systems Act, 2007, not including System Provider.

WHEN AND WHERE CAN THE COMPLAINT BE FILED?

For grievance redressal, the complainant should first approach the concerned System Participant. The complainant can approach the Ombudsman when the System Participant does not respond within one month after receiving the complaint or he rejects the complaint or in case the complainant is not satisfied with the reply given by the System Participant. In all the aforementioned cases, the complainant can approach the Ombudsman within whose jurisdiction the System Participant’s branch or office is located.

In case of a complaint that arises out of services with the centralized operations then it shall be filed before the Ombudsman within whose jurisdiction the customer’s billing or declared address is located.

GROUNDS OF COMPLAINT

Clause 8 of the Scheme states the grounds of the complaint. It states that any person can file a complaint cost free to the Ombudsman who have the jurisdiction on the grounds of deficiency of service by the System Participant. The following are some of the grounds:

Prepaid Payment Instruments

1. Prepaid payment instruments– in case the System Participant non-adhere to the RBI’s intructions about prepaid payment instruments on any of the following:
2. When there is a failure in crediting the merchant’s account in reasonable time;
3. When there is a failure in loading the funds in wallets/cards within a reasonable time;
4. There is an unauthorized electronic fund transfer;
5. When there is a failure in refund within a reasonable time or refusal to refund in case of unsuccessful or rejected or returned or cancelled transactions;
6. When System Participant non-adhere to any of the instructions of RBI;
7. If there is non-transfer or refusal to transfer in a reasonable time or even if there is a failure to transfer, the prepaid payment instruments balance to the holder’s own bank account or back to the source at the time of prepaid payment instruments closure, expiration of validity period, etc.

Mobile or Electronic Fund Transfer

1. Mobile or Electronic fund transfer– in case the System Participant non-adhere to the RBI’s instructions about mobile or electronic fund transfer on any of the following:
2. There is a failure in effecting the online payment or transfer of fund in reasonable time;
3. There is unauthorized electronic fund transfer;
4.  When System Participant non-adhere to any of the instructions of RBI on mobile or electronic fund transfer;
5. There is failure to act within the time period upon stop-payment instructions and under the notified circumstances to the customers within the mentioned time period;
6. When there is a failure in reversing the amount debited from the customer account within the prescribed time period in the failed payment transaction cases.
7. When the funds that are transferred wrongly to the beneficiary account because of lapse at the end of System Participant are non-reversal or failed to reverse within a reasonable time.

PROCEDURE FOR FILING OF COMPLAINT

A complaint can be filed with the Ombudsman by writing on a paper and sending it to the concerned Ombudsman office either by post or hand delivery. The complaint can also be filed by email to the Ombudsman.

REJECTION OF COMPLAINT

The complaint can be rejected by the Ombudsman at any stage in case it appears to him that the complaint:

• Is not made under the grounds of complaint specified under Clause 8 of the Scheme.
• Against the System Participant was made, was not covered under the Scheme.
• Has not addressed the concerned System Participant first for the redressal.
• Is beyond the limits of compensation.
• In case the subject matter of the complaint that is pending is already dealt with in some other forum such as a court of law or consumer court.
• The subject matter is the same which had been already dealt by the Ombudsman in earlier proceedings.
• Is frivolous and vexatious.
• Covers the disputes that are mentioned under Section 24 of the Payment and Settlement Systems Act, 2007.
• The disputes are related to the transactions between customers.
• Is not persuaded diligently by the complainant.
• The Ombudsman is of the opinion that there is no loss or harm or inconvenience caused to the complainant.

AGRRIEVED WITH THE AWARD

In case the complainant is unsatisfied with the award, the Scheme provide an appellate mechanism for both complainant and System Participant. Any complainant aggrieved with the award passed by an Ombudsman can approach the Appellate authority.

TIME LIMIT FOR FILING AN APPEAL

An appeal can be filed against the award or the decision of the Ombudsman rejecting the complaint within a period of 30 days from the date of receipt of communication of award or the rejection of the complaint.

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INTRODUCTION

With the growth and advancement of technology, we are moving towards a more digitalised world. The modern era is dependent on the internet to a great extent. Hence the contracts are also getting digitalised. Basically, smart contracts are new age software-based contracts in which the software automates the business processes. It is self-performing in nature. 

KEYWORDS

Smart contract, software-based contract, blockchain, self-performing, contracts.

WHAT ARE SMART CONTRACTS?

As mentioned above, the smart contract is a new age software-based contract having a main feature of self-performing. The smart contracts are stored on blockchain and in this type of contracts the code explains the mechanisms of the transactions and final arbiter of the terms. Therefore, these contracts have become the building blocks of the entire ecosystem of decentralized applications and it represents a point of convergence of development of blockchain. Due to blockchain the requirement of intermediaries or third parties or human interactions are eliminated owing to its decentralized nature. This also ensures the smooth and trouble-free experience of virtual contract execution. Hence, there are no chances of human errors, however, once the agreement is completely codified, it cannot be altered or modified as per the need. 

Features

• It is self-performing
• It is once codified, cannot be modified or altered
• It uses blockchain technology for performance and executions of contract virtually
• For the performance and completion, it do not require submission of physical documents.

Presently, the smart contracts are best suited for two types of commonly used transactions:

• Confirming the payment of funds upon certain triggering events.
• Imposition of financial penalties if certain objectives or conditions are satisfied. 

HOW DO SMART CONTRACT WORKS?

In smart contracts, the code contains the terms. Therefore, the contract interprets and verify then automatically executes the transactions which are in accordance with the terms. For example, in case of rent, a contract of rent is made in smart contracts. The tenant will pay the rent to the house owner in cryptocurrency and once the payment is made and the house owner receives the receipt of successful transaction, he will release the key to the house. The system operates on If-Then principle and the people who are involved in blockchain will observe the transaction and will become the witnesses. The house owner will be surely paid when he releases the key and the tenant will definitely receive the key if he pays the amount. Therefore, one action will not be completed without the other and this states an efficient and effective system. 

USES

The smart contracts can be used in various such cases. Some of them are listed below:

1. Insurance- due to lack of automation process in insurance claims, this can lead to delay to process claims for months and it can be problematic to the customers. Here, adopting smart contracts can be extremely helpful. The smart contract can trigger the insurance claim automatically when certain events occur which ultimately saves time and costs. Furthermore, this makes the entire process smooth and effective.
2. Mortgages-  the smart contract assist in mortgages cases by  automatically joining the parties and by providing a frictionless process. It can also automatically process payments and release the liens from landlords when the loan is paid.
3. Supply chain management- for any company keeping a track of the flow of goods is a difficult task. Here, the smart contract helps and saves time, costs and makes the process more efficient by taking a note of the ownership rights as the products move through supply chain with confirmation who is responsible for the product at a given time.

SMART CONTRACT IN INDIA

The primary statute to regulate the contracts in India is the Indian Contract Act, 1872. Section 10 of the Act states that “all agreements are contracts if they hold the free consent of parties willing to contract, for a lawfully accepted consideration and with an object.” In simpler terms it means that an agreement to be enforceable by law must have an offer, acceptance and consideration. In smart contracts, there is offer, acceptance and consideration in form of cryptocurrency. Hence, the essential requirements of section 10 are fulfilled which means that the smart contracts are enforceable under the Indian law. However, cryptocurrency is not recognized in India as there is no such regulation which can regulate it. Here a question raises, whether cryptocurrency can be considered a valid consideration under the Indian law. In a 2020 judgment of the Supreme Court, the Hon’ble Court lifted the ban imposed by Reserve Bank of India on cryptocurrency which refused the banks and financial institutions from providing services to individuals or businesses who were engaged in cryptocurrency dealings. 

Now, question arises that whether digital signature are enforceable or not and can be admitted as an evidence in the court?

Section 5 and section 10 of the Information Technology Act, 2000 (“IT Act”)defines that a digital signature is legally acceptable and a contract of electronic means to be legitimate and enforceable. Section 65B of the Indian Evidence Act, 1872 (“Evidence Act”) states that the contracts signed digitally shall be admitted as an evidence in the courts. However, according to the Evidence Act, an electronic contract is considered valid only when if it is authenticated by way of a digital signature which should be in accordance with law and these signatures are enforceable and recognized under the IT Act and in accordance with the rules of the Central Government. In case of smart contracts, the contract may be identifiable to the contracting parties, however, these do not employ signatures in digital formats that the Indian law requires. Thus, the smart contracts may not enjoy the benefits of a contract under the Indian law.  

Smart contracts are enforceable in India, however, if caution is not followed with respect to the party that is being contracted then the consequences of a failed transactions shall be carried all by own as the law has no detailed system in place for the regulation of the smart contracts. The smart contracts might not be enforceable under the Indian law if the consideration in the contract is not mutual. As the Indian law recognizes the concept of mutual consideration, absence of the same will make the contract enforceable. This situation can occur in case of unilateral contracts. Although a smart contract without consideration can still be enforceable through code. However, if such contract is breached them it shall not be held as breach in the eyes of courts of India because for the courts there is no contract in the first place as there was no mutual consideration which is a significant requirement of a contract. 

CONCLUSION

It can be concluded after reading the above piece of information on smart contracts that smart contracts have many benefits with evident disadvantages. The smart contracts are enforceable in the Indian law, however, the protection cannot be granted as there is no regulation which can regulate this type of contracts. There are several other issues as well in smart contract such as policy issues including jurisdictions problems and the possibility of fraud and etc. Therefore, the Indian law needs amendments or laws for the regulation of smart contracts in India.

REFERENCES

1. Indian Contract Act, 1872.
2. The enforceability of smart contracts in India, https://www.mondaq.com/india/contracts-and-commercial-law/874892/the-enforceability-of-smart-contracts-in-india
3. Smart contracts: Functioning and legal enforceability in India, https://www.alliance.edu.in/ijls/ijls-2021/assets/documents/Smart-Contracts.pdf
4. Smart contracts in India, https://www.mondaq.com/india/fin-tech/1133130/smart-contracts-in-india

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What is Arbitration?

Arbitration is the most preferred form of alternative dispute resolution. In a court proceeding, the judges play a significant role in delivering justice, the same is in an arbitration proceeding. The arbitrators play important role in accomplishing the aim of arbitration (Resolving dispute). An eminent arbitrator should act fair in deciding the case and granting justice to the parties. He must comply with the Principles of Natural Justice. Section 11 of the Arbitration and Conciliation Act, 1996 defines the appointment of arbitrators. It also mentions who can be an arbitrator?

Who is an Arbitrator?

In arbitration, an arbitrator is the presiding officer. The Cambridge dictionary defines an arbitrator as

A person who has been officially chosen to make a decision between two people or groups who do not agree.

Cambridge Dictionary

In an arbitration proceeding, he plays an important role in deciding the case. An arbitrator is an independent third-party entity. They hear the pieces of evidence, apply the law and decide the result of the arbitration proceedings.

Who can be an Arbitrator?

A person who is of sound mind can be appointed as an arbitrator. The nationality of an arbitrator is not specifically restricted. Hence, the arbitrator may be of any nationality. This is as per Section 11 of the Arbitration and Conciliation Act, 1996 (“The Act”). Furthermore, the parties are free to choose the arbitrator and determine the arbitrator’s qualifications.

A person to become an arbitrator must qualify the following conditions:

• He can be a judge.
• He can be an advocate; or
• He can be a chartered accountant; or
• He can be a maritime expert.
• He can be an executive; or
• He can be an engineer; or
• He can be a businessman;

Some arbitral institutions which conducts international arbitration, have included foreigners for being arbitrators. This was to enable the foreign parties to appoint arbitrators of other nationalities whom they consider more appropriate.

What norms should an Arbitrator abide by?

There are various norms that an arbitrator must abide by.

• A person who is of the general reputation of accountability, integrity. He shall be capable of applying objectivity in arriving at a settlement of disputes.
• An arbitrator should be impartial and neutral. He must avoid entering into any associations which has a tendency to affect the impartiality. The arbitrator must avoid circumstances which might create a reasonable appearance of partiality or bias among the parties.
• The arbitrator must not incorporate himself in any legal proceedings. He should refrain from any potential conflict related to the disputes which he shall arbitrate.
• He must not engage in any private discussions or conversations with the parties related to the dispute.
• The arbitrator must not accept any illegal gratifications.
• For any disputes which come before him, he must be capable of suggesting, recommending or writing a reasonable and enforceable arbitral award.

How is an Arbitrator appointed?

The number of arbitrators to be appointed is stated in Section 10 of the Act. It states that the parties are free to decide the number of arbitrators, however, the number should not be even. For the appointment of an arbitrator, the parties are free to decide the procedure. In case the parties fail to decide or agree on the appointment of arbitrators, they must refer to the agreement.

If the agreement states that three arbitrators are to be appointed for arbitration, each party must choose one. Among the two appointed arbitrators must jointly appoint an arbitrator for the proceeding, who shall act as a presiding arbitrator.

It might so happen that only one arbitrator is present. There might not be an arbitration agreement. In that case, this is the procedure of the appointment of the arbitrator. The parties must decide the arbitrator within 30 days from the day of receipt by one party’s request from the other party for his decision. Else the Chief Justice or his designate appoints the same, as mentioned under section 17 (2) and 17 (5).

While considering the application for the appointment of an arbitrator, the Court should confine to the examination of the arbitration agreement.

What are the powers of an Arbitrator?

According to the Arbitration and Conciliation (Amendment) Act, 2021 (“2021 Act”, the arbitrator has the power to take interim measures under section 17. Section 31 (6) empowers the arbitrator to make an interim arbitral award at any time. He may do so during the arbitration proceedings in any dispute. With regards to it the arbitrator can make a final award.

The arbitrator also has the power to appoint an expert, unless otherwise agreed by the parties for his advice under section 26 under the 2021 Act. An expert, appointed by the concerned party, is to examine them and their documents, goods or property. With the help of the same, he can prepare his report.

CONCLUSION

The above-mentioned qualifications describe who can become an arbitrator. It includes a piece of brief information about the appointment and power. The Arbitration and Conciliation (Amendment) Act, 2021 has eradicated the Schedule VIII of the Arbitration and Conciliation Act, 2019. It was replaced with Section 43J. It states that “The qualifications, experience and norms for accreditation of arbitrators shall be such as may be specified by the regulations“.

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