The intellectual property infringement actions are injunctions, damages and account of profits. Most actions start with an application for some form of preliminary or interlocutory relief, and in most cases does not get beyond this preliminary stage.
In the normal course, a successful plaintiff in an industrial property action will be entitled to a final injunction.
India has a strong Judiciary system. In order to protect IPR in India, The enforcement of IPR is the ability of the right holder to protect his assets. An efficient system that provides effective protection through enforcement is necessary to make the IP rights meaningful.
Civil Litigation
The objectives of civil litigation are:
provide compensation for the prejudice caused by infringements;
dispose appropriately of the infringing copies (destruction or other disposals outside the normal channels of commerce)
dispose appropriately of implements used for infringing activities; and
Grant injunctions to prohibit further infringements.
The remedies typically available in intellectual property infringement actions are injunctions, damages and account of profits.
Injunction
In the normal course, a successful plaintiff in an intellectual property action will be entitled to a final injunction.
Damages or Account of Profits
This approach which is more difficult to prove is through consideration of sales lost to the plaintiff; in this case, the plaintiff is entitled to the entire lost profit.
Criminal Procedures
India has effectively resorted to the criminal procedures for the protection of IPR. TRIPS Agreement provides:
Imprisonment and/or monetary fines,
Penalties,
Seizure, forfeiture and destruction of infringing goods and of any materials and implements the predominant use of which has been in the commission of the offence.
File your trademark application electronically/online:
The Indian trademark office accepts applications for registration of a mark electronically. File your application online and save that tree. There are other reasons why you should file your application online. The application number and filing confirmation are instantly generated and unnecessary delays such as errors on the data manually entered from the paper application and costs and delays to rectify these errors are avoided. It also helps you in keeping paperless records of your trademarks portfolio.
Should be clear on the specification of goods and services covered by your application:
When you file a trademark application claiming usage of a mark, specify only the goods and services on/for which you are actually using your mark. Even though the Indian trademark office is lenient, at the time of examination you may have to file additional evidence of usage of the mark by way of an affidavit. In the event of you being unable to provide evidence of usage of the mark on all the goods and services mentioned in the application, you may have to amend the application not only involving additional costs but also causing the exorbitant delay in your application proceeding to the next stage towards registration.
You can file a trademark application with a wider specification of goods and services when you propose to use the mark in the future. However, there is a possibility of a third party challenging your trademark registration on a later date on grounds of non-use of some goods/services covered under the registration. The strategy for effective protection of your mark would be to file an application covering a wider specification of goods/services when you propose to use it in the future and file subsequent applications with specific goods/services claiming usage of your mark.
Submit all necessary documents at the time of filing:
There are only three documents that you may have to submit at the time of filing the application. A certified copy of the Priority Application when you claim priority from an application filed in any of the country who is a member of the Paris Convention, an affidavit along with evidences of usage of the trademark in India when you file an application claiming usage of the trademark in India and the Power of Attorney/Authorization if the application is filed through your counsel. Even though these three documents can be submitted with the trademark office subsequent to the filing of your trademark application, it is advisable to have it filed at the filing of the trademark application. In most cases, the examiners oversee the documents submitted later and raise a non-substantive objection on missing documents which not only causes the delay in your application proceeding to the next stage but also additional counsel costs for late submission of documents and responding to the trademark office’s objection.
Claim date of first use of your trademark in India:
Using your trademarks in India plays a very important role in your trademark protection strategy. The Indian Trademarks Act, 1999 defines the “use” of a mark in reference to the use of the mark upon, or in any physical or in any other relation whatsoever, to such goods and in respect of services to the use of the mark as or as part of any statement about the availability, provision or performance of such services.
The Indian Courts have held that limited sales, knowledge of the mark within specific circles, advertisements in magazines, newspapers, television, video films, cinemas, and internet circulated or made available in India even without the physical existence of goods/services in the Indian market amounts to use of the trademark in India. So the test to determine usage needs to be not just the physical presence of the goods/services in India but also to use the mark in India and such usage is bonafide and the public has knowledge about the trademark.
Review the pieces of evidence you have before you and choose the first date of using the trademark in India and mention that date in your application. The trademark office may insist that you file an affidavit along with a copy of the evidence on which you rely on claiming your first use.
When the trademark application has been filed with sufficient information and the mark passing the tests of objections under absolute and relative grounds the trademark office allows the application to be advertised in the trademarks journal. This is practicality saves several months of delay that can be caused by non-substantive objections such as missing POA and User Affidavit.
The Supreme Court of Pakistan pronounced historic and brave judgment in favour of Aasiya Bibi here we share the Landmark Judgment.
The promise made was eternal and universal and was not limited to St. Catherine alone. The rights conferred by the charter are inalienable and the Holy Prophet Muhammad (Peace Be Upon Him) had declared that Christians, all of them, were his allies and he equated the ill-treatment of Christians with violating God’s covenant.
---Supreme Court of Pakistan
Facts of the Case:
The complainant, in this case, was a local cleric Qari Muhammad Salaam, who on June 19, 2009, lodged an FIR against Aasiya Bibi alleging that she had uttered derogatory remarks against the Holy Prophet (PBUH) while plucking purple berry in the field on June 14, 2009.
According to Qari Muhammad Salaam, Asma Bibi and Mafia Bibi had come up to him to complain about the blasphemous remarks uttered by Aasiya Bibi a day after the instance. The delay in registering of the FIR came because Aasiya Bibi was called over at a public gathering, where she confessed to her crime and Qari Salaam wanted to investigate on his part before lodging an FIR.
The prosecution produced seven witnesses including three police witnesses.
The Defence:
The appellant, Aasiya Bibi, in her defence narrated an altercation that took place between her and Asma Bibi and Mafia Bibi in the purple berry fields. “The ladies Mafia Bibi and Asma Bibi quarrelled with me over fetching water which was offered by me to bring for them, but they refused to say that since I am a Christian, they will never take water from my hand,” she wrote in her statement.
This led to a heated exchange and only then Qari Muhammad Salman was involved in the affair. According to Bibi, a ‘false, fabricated and fictitious case’ was made against her. She reiterated that she has the utmost respect for Prophet Muhammad (PBUH) and can take the oath over a Bible that she never passed any derogatory remarks against the Prophet or the Holy Quran.
Just In: Supreme Court allows the sale of firecrackers, but with conditions:
Relevant Text:
"(xiv) On Diwali days or on any other festivals like Gurpurab etc., when such fireworks generally take place, it would strictly be from 8:00 p.m. till 10:00 p.m. only. On Christmas even and New Year eve, when such fireworks start around midnight, i.e. 12:00 a.m., it would be from 11:55 p.m. till 12:30 a.m. only
(xvi) All the official respondents, and particularly the Police, shall ensure that fireworks take place only during the designated time and at designated places, as mentioned above. They shall also ensure that there is no sale of banned firecrackers. In case any violation is found, the Station House Officer (SHO) of the concerned Police Station of the area shall be held personally liable for such violation and this would amount to committing contempt of the Court, for which such SHO(s) would be proceeded against."
“This article summarizes many of the common psychological and emotional effects divorce has on men, women and children. The divorce rate in the United States is the highest in the world. This article is not conclusive and only gives some of the effects known to effect family members when getting divorced and seeking child custody.”
By Dr. Kathie Mathis, Psy.D, NCP, DAPA, California Cognitive Behavioral Institute
DIVORCE EFFECTS AND PREVALENCE: It may be helpful to understand a little about divorce and the typical effects it has on men, women and children:
*The divorce rate in the United States is the highest in the world. Fifty percent of marriages end in divorce. Sixty-seven percent of all second marriages end in divorce. *As high as these figures are, what is also true is that the divorce rate appears to be dropping. The reasons for this change are not clear. Many people cannot afford to divorce, many people cannot afford to marry. Another reason is that “baby boomers,” who account for a large proportion of our population are no longer in their 20s and 30s, the ages when divorce is most prevalent. The societal expectation is that divorced life is less satisfying than married life.
*Divorce is associated with an increase in depression–people experience loss of partner, hopes and dreams, and lifestyle.
*The financial reality of divorce is often hard to comprehend: the same resources must now support almost twice the expenses. Divorce is expensive. Aid for Dependent Children (AFDC) resources are drained by the needs of divorced and single parent families; including the cost of collecting child support
*Fifty percent of all children are children of divorce.
*Twenty-eight percent of all children are born of parents who have chosen not to marry.
FOR WOMEN:
Women initiate divorce twice as often as men
90% of mothers who are abused have custody battles with abusive significant other
and 78% of male abusers who seek custody get custody
60% of people under poverty guidelines are divorced women and children
Single mothers support up to four children on an average after-tax annual income of
$12,200
65% divorced mothers receive no child support (figure based on all children who
could be eligible; 75% receive court-ordered child support (and rising since inception
of uniform child support guidelines, mandatory garnishment and license renewal
suspension)
After divorce, women experience less stress and better adjustment on average than
do men. Reasons for this are that (1) women are more likely to notice marital
problems/issues and to feel relief when such problems end, (2) women are more
likely than men to rely on social support systems and help from others, and
(3) women are more likely to experience an increase in self-esteem when they
divorce and add new roles to their lives and able to make independent choices for
themselves.
Women who work and place their children in child care experience a greater stigma
and lack of compassion than men in the same position
8. Women who lose custody feel that they “wasted their time” fighting for the children
rather than looking at it as an love effort worth taking
FOR MEN:
Men are usually confronted with greater emotional adjustment problems than women. The reasons for this are related to the loss of intimacy, the loss of social connection, reduced finances, and the common interruption of the parental role, and reliance on women in the relationship
Men remarry more quickly than women.
As compared to “deadbeat dads,” men who have shared parenting (joint legal custody), and ample time with their children, and also have an understanding of and direct responsibility for activities and expenses of children, stay involved in their children’s lives and are in greater compliance with child support obligations. There is also a greater satisfaction with child support amount when negotiated in mediation. Budgets are prepared, and responsibility divided in a way that parents understand.
Men are initially more negative about divorce than women.
Effects of Divorce on Children
In the last few years, higher-quality research which has allowed the “meta-analysis” of previously published research has shown the negative effects of divorce on children have been greatly exaggerated. Researchers now view conflict, rather than the divorce or residential schedule, as the single most critical determining factor in children’s post-divorce adjustment. The children who succeed after divorce, have parents who can communicate effectively and work together as parents In the past we read that children of divorce suffered from depression, failed in school, and got in trouble with the law. Children with depression and conduct disorders showed indications of those problems pre-divorce because there was parental conflict pre-divorce.
Actually, children’s psychological reactions to their parents’ divorce vary in degree dependent on three factors: (1) the quality of their relationship with each of their parents before the separation, (2) the intensity and duration of the parental conflict, and (3) the parents’ ability to focus on the needs of children in their divorce and after.
New evidence indicates that when children have a hard time, boys and girls suffer equally; they just differ in how they suffer. Boys are more externally symptomatic than girls, they act out their anger, frustration and hurt. They may get into trouble in school, fight more with peers and parents. Girls tend to internalize their distress. They may become depressed, develop headaches or stomach aches, and have changes in their eating and sleeping patterns. However there are exceptions to every rule.
A drop in parents’ income often caused by the same income now supporting two households directly affects children over time in terms of proper nutrition, involvement in extracurricular activities, clothing (no more designer jeans and fancy shoes), and school choices. Sometimes a parent who had stayed home with the children is forced into the workplace and the children experience an increase in time being alone or in child care.
A child’s continued involvement with both of his or her parents allows for realistic and better balanced future relationships. Children learn how to be in relationship by their relationship with their parents. One important factor which contributes to the quality and quantity of the involvement of a father/mother in a child’s life is mother’s/father’s attitude toward the child’s relationship with mother/father. When fathers leave the marriage and withdraw from their parenting role as well, they report conflicts with the mother as the major reason.
The impact by the introduction of stepparents is another factor for children. No one can replace Mom or Dad. And no one can take away the pain that a child feels when a parent decides to withdraw from their lives. Before embarking on a new family, encourage family to do some reading on the common myths of step families. Step family relationships need to be negotiated, expectations need to be expressed, roles need to be defined, realistic goals need to be set.
Joan Kelly, PhD, former president of the Academy of Family Mediators and prominent divorce researcher from California reports that, depending on the strength of the parent-child bond at the time of divorce, the parent-child relationship diminishes over time for children who see their fathers less than 35% of the time. Court-ordered “standard visitation” patterns typically provide less.
Divorce also has some positive effects for children. Single parents are often closer to their children than married parents. But we don’t want to “adultify” a child. Children must be allowed a childhood. Also a negative is when a child takes on too much responsibility because one or both parents are not functioning well as a parent, or when a parent talks to a child about how hurt they are by the other parent, or how horrible that other parent is. Often a separated parent will make an effort to spend quality time with the children and pay attention to their desires (Disneyland, small gifts, phone calls, etc). And you can imagine that some children might find some benefit in celebrating two Christmases and birthdays each year. If both parents remarry, they may have twice as many supportive adults/nurturers. At the very least, when parents can control their conflict, the children can experience freedom from daily household tension between parents.
EMOTIONAL STAGES OF DIVORCE:
The decision to end a relationship can be traumatic for everyone involved, chaotic, and filled with contradictory emotions. There are also specific feelings, attitudes, and dynamics associated with whether one is in the role of the initiator or the receiver of the decision to divorce. For example, it is not unusual for the person wanting the divorce to experience fear, relief, distance, impatience, resentment, doubt, and guilt. Likewise, when a party has not initiated the divorce, they may feel shock, betrayal, loss of control, victimization, decreased self-esteem, insecurity, anger, a desire to “get even,” and wishes to reconcile.
To normalize family members experiences during this time, it may be helpful to know that typical emotional stages have been identified with ending a relationship. It may also be helpful to understand that marriages do not breakdown overnight; the breakup is not the result of one incident; nor is the breakup the entire fault of one party. The emotional breaking up process typically extends over several years and is confounded by each party being at different stages in the emotional process while in the same stage of the physical (or legal) process.
It is also quite normal to do different things to try to create distance from the former partner while divorcing. A common response to divorce is to seek vengeance. When parties put their focus on getting even, there is an equal amount of energy expended on being blameless. What’s true is that blaming and fault finding are not necessary or really helpful. Psychologist Jeffrey Kottler has written a very helpful book on this subject entitled Beyond Blame: A New Way of Resolving Conflicts in Relationships, published by Jossey-Bass.
Much of everyone’s healing will involve acceptance, focusing on the future, taking responsibility for their own actions (now and during the marriage), and acting with integrity. Focusing on the future they would like to create may require an acknowledgment of each other’s differing emotional stages and a compassionate willingness to work together to balance the emotional comfort of both parties.
The following information on the emotional stages of ending a relationship:
DISILLUSIONMENT OF ONE PARTY (sometimes 1-2 years before verbalized)
A. Vague feelings of discontentment, arguments, stored resentments, breaches of trust
B. Problems are real but unacknowledged
C. Greater distance; lack of mutuality
D. Confidential, fantasy, consideration of pros and cons of divorce
E. Development of strategy for separation
F. Feelings: fear, denial, anxiety, guilt, love, anger, depression, grief
EXPRESSING DISSATISFACTION (8-12 months before invoking legal process)
A. Expressing discontent or ambivalence to other party
B. Marital counseling, or
C. Possible honeymoon phase (one last try)
D. Feelings: relief (that it’s out in the open), tension, emotional roller coaster, guilt, anguish, doubt, grief
DECIDING TO DIVORCE (6-12 months before invoking legal process)
A. Creating emotional distance (i.e., disparaging the other person/situation in order to leave it)
B. Seldom reversible (because it’s been considered for awhile)
C. Likely for an affair to occur
D. Other person just begins Stage I (considering divorce) and feels denial, depressed, rejected, low self-esteem, anger
E. Both parties feel victimized by the other
F. Feelings: anger, resentment, sadness, guilt, anxiety for the family, the future, impatience with other, needy
ACTING ON DECISION (CONCLUSION) (beginning the legal process)
A. Physical separation
B. Emotional separation (complicated by emotional flare-ups)
C. Creating redefinition (self-orientation)
D. Telling others of the decision
E. Setting the tone for the divorce process (getting legal advice and setting legal
precedent: children, support, home)
F. Choosing sides and divided loyalties of friends and families
G. Usually when the children find out (they may feel responsible)
H. Feelings: traumatized, panic, fear, shame, guilt, blame, histrionics
GROWING ACCEPTANCE (during the legal process or after)
A. Adjustments: physical, emotional
B. Accepting that the marriage wasn’t happy or fulfilling
C. Regaining a sense of power and control, creating a plan for the new future
D. This is the best time to be in mediation: parties moods can be more elevated (thrill of a second chance at life)
NEW BEGINNINGS (completing the legal process to four years after)
A. Parties have moved beyond the blame and anger to forgiveness, new respect, new roles
B. Experiences: insight, acceptance, integrity and comparing Mediation and Litigation
Why is mediation a compassionate and appropriate venue for helping people in divorce? On the average, it takes family members approximately four to eight years to recover from the emotional and financial expense of a bitter adversarial divorce. In an adversarial divorce, there is no possible resolution of the emotional issues, only decreased trust and increased resentment.
A litigated divorce can cost each party $5,000 to $85,000 or more. The focus is on assigning blame and fault and trying to get the most powerful position (changing locks, freezing bank accounts, getting temporary custody of the children). Communications between parties break down. Negotiations proceed through attorneys and are strategic and positioned. Attorneys have an ethical responsibility to zealously advocate for the best interest of their client. Often there is no consideration of the best interests of the children or recognition for the need for parties to have an ongoing relationship because they have children, friends, extended family, and community together. Going to court is an expensive risk; a judge who does not know you makes decisions for you that will affect your whole life.
Mediators can save clients thousands of dollars in immediate and future legal and counseling fees. Mediators can focus parties on creating their best possible future and help parties resolve their emotional issues for the best interests of their children and their own psychological well-being. Mediators can help parties feel understood, accept responsibility for the failure of the marriage and, when there are children, begin to reshape their relationship from one of partners to co-parents. Mediators can empower clients by helping them be at their best (rather than their worst) during a challenging time in their lives, enable them to have an active role in their separating (creative choice vs. court imposition), create a clear and understandable road map for the future, make informed decisions, and to look back at their behavior in the mediation of their divorce with integrity and self-respect.
TYPICAL REACTIONS OF CHILDREN TO DIVORCE:
Much of children’s post-divorce adjustment is dependent on (1) the quality of their relationship with each parent before the divorce, (2) the intensity and duration of the parental conflict, and (3) the parents’ ability to focus on the needs of the children in the divorce.
DENIAL
This especially occurs in young children and surfaces as story-telling and they will also have reconciliation fantasies).
ABANDONMENT AND TRIANGULATION When parents separate, children worry. They are afraid they too are divorceable and will be abandoned by one or both of their parents. This problem is worsened by one or both parents taking the children into their confidence, talking about the other parent in front of the children, using language like “Daddy is divorcing us,” being late for pick-up, or abducting the children. Children who are feeling insecure will say things to a parent which is intended to evoke a mama bear/papa bear response (a demonstration of protectiveness). If children do not have “permission” to have a good relationship with the other parent, or if they think they need to “take care of” one of their parents in the divorce, they are likely to end up having feelings of divided loyalties between their parents or, in the extreme, they may become triangulated with one parent against the other parent.
PREOCCUPATION WITH INFORMATION Children will want details of what is happening and how it affects them. Communication from the parents needs to be unified and age appropriate. D. ANGER AND HOSTILITY
Children may express anger and hostility with peers, siblings, or parents. School performance may be impaired. Hostility of children toward parents is often directed at the parent perceived to be at fault. Hostility turned inward looks like depression in children.
DEPRESSION Lethargy, sleep and eating disturbances, acting out, social withdrawal, depression, psychological detachments, reactive attachment disorders, splitting, physical injury (more common in adolescents) and more physical problems. F. IMMATURITY/HYPERMATURITY
Children may regress to an earlier developmental stage. They may do some “baby-talk” or wet their beds. Have enuresis and encopresis. Children may become “parentified” or “adultified” by parents and focus on what they perceive to be the emotional and physical needs of their parents.
PREOCCUPATION WITH RECONCILIATION The more conflict there is between the parents, the longer children hold onto the notion of their parents’ reconciliation. It is clear that the parents are not “getting on” with their lives. Children will often act out in ways which force their parents to interact (negatively or positively).
ACTING OUT
Children will often act out their own and their parents’ anger. In an attempt to survive in a hostile environment, children will often take the side of the parent they are presently with. This may manifest in refusals to talk to the other parent on the phone or reluctance to share time with the other parent. Adolescents will typically act out in ways similar to how the parents are acting out.
In summary, expect that children will test a parent’s loyalty, experience loyalty binds, not want to hurt either parent, force parents to interact because they don’t want the divorce, try to exert some power in the situation, express anger over the divorce, occasionally refuse to go with the other parent (normal divorce stress, loyalty conflict/triangulation, or they may simply not want to stop doing what they’re doing at the moment–similar to the reaction we’ve all gotten when we pick our children up from child care, or we want to go home from the park).
The most common problem which comes up are due to triangulation, divided loyalties, and projection. Some indicators of each are:
Triangulation: Child refuses to have time with the other parent or talk to the other parent on the phone, child badmouths the other parent.
Divided loyalties: When a child tells each parent different and opposing things about what they want it is a good indication that the child is trying to please both parents and is experiencing divided loyalties.
c. Projection: Children are barometers of a parent’s emotional well-being and the family. Usually a parent reporting the stress of a child cannot see that the child is acting on the parent’s anxiety.
Signs of Stress in Children:
Sometimes parents need help identifying stress in children, especially little ones. What follows are some typical experiences and signs of stress in children of different ages.
INFANTS AND TODDLERS:
Regression in terms of sleeping, toilet training or eating; slowing down in the mastery of new skills
B. Sleep disturbances (difficulty gong to sleep; frequent waking)
C. Difficulty leaving parent; clinginess
D. General crankiness, temper tantrums, crying.
THREE TO FIVE YEARS:
A. Regression: returning to security blankets and discarded toys, lapses in toilet training, thumb sucking
B. Immature grasp of what has happened; bewildered; making up fantasy stories
C. Blaming themselves and feeling guilty
D. Bedtime anxiety; fitful/fretful sleep; frequent waking
E. Fear of being abandoned by both parents; clinginess
F. Greater irritability, aggression, temper tantrums.
SIX TO EIGHT YEARS:
A. Pervasive sadness; feeling abandoned and rejected
B. Crying and sobbing
C. Afraid of their worst fears coming true
D. Reconciliation fantasies
E. Loyalty conflicts; feeling physically torn apart
F. Problems with impulse control; disorganized behavior.
NINE TO TWELVE YEARS:
A. Able to see family disruption clearly; try to bring order to situation
B. Fear of loneliness
C. Intense anger at the parent they blame for causing the divorce
D. Physical complaints; headaches and stomach aches
E. May become overactive to avoid thinking about the divorce
F. Feel ashamed of what’s happening in their family; feel they are different from other children.
ADOLESCENTS:
A. Fear of being isolated and lonely
B. Experience parents as leaving them; feel parents are not available to them
C. Feel hurried to achieve independence
D. Feel in competition with parents
E. Worry about their own future loves and marriage; preoccupied with survival
F. Discomfort with a parent’s dating and sexuality
G. Chronic fatigue; difficulty concentrating
H. Mourn the loss of the family of their childhood and future as a “unit”
About the Author: Dr. Kathie Mathis is CEO of California Cognitive Behavioral Institute and is a Doctor of Psychology and Divinity, Domestic Violence Advocate, Certified Batterers Facilitator, Certified Anger Management Facilitator, Nationally Certified Psychologist, Diplomate of the American Psychotherapy Association, Certified Laughter Coach, Certified Sex Trafficking Counselor/trainer, Certified Parenting Instructor/facilitator, Certified Paiirs Facilitator for adults and teens, Certified Sex Offender Counselor, Certified Sex Addiction Counselor, Certified Sociopathic Type Relationship Facilitator/trainer, and a Certified Emotional Addiction Specialist.
