CYBER LAW, IPR

REVERSE DOMAIN NAME HIJACKING: Fight against powerful (Reverse Cybersquatting)

The filing of cybersquatting lawsuits began as a defensive strategy to combat menace of cybersquatting. These lawsuits is being used as a way of bullying innocent domain name registrants into giving up domain names that the trademark owner is not, in fact, entitled to.

Paragraph 15(e) of the UDRP Rules empowers panel to declare in case the complaint was brought in bad faith, (e.g. in an attempt at Reverse Domain Name Hijacking) or was brought primarily to harass the domain-name holder, the Panel shall declare in its decision that the complaint was brought in bad faith and constitutes an abuse of the administrative proceeding. It becomes difficult to objectively quantify what constitutes subjective “bad faith,” resulting in panels often viewing parties’ factual discrepancies as indeterminable or immaterial at best. Therefore, despite its express recognition in the UDRP, reverse domain name hijacking findings are rare and based heavily on the factual circumstances surrounding each case. The decision in reverse domain name hijacking is expressed in following manner in the disputed domain name <tatamassage.com>:

In this state of the record, the Panel is not prepared to infer that the Respondent, or those behind it, must have known of the Complainant’s trademarks and adopted the Tata name because of its associations with the Complainant. Instead, the Respondent has provided credible evidence, within the constraints of an administrative proceeding of this kind, that the disputed domain name was adopted because the masseuse providing the Respondent’s massage services is known as Tata. As the disputed domain name is being used in connection with an apparently legitimate business which does not fall reasonably clearly within the Complainant’s proven rights, the Respondent appears to have rights or a legitimate interest to use the disputed domain name.”

(Tata Sons Limited v. Tata Massage, Case No. D2012-2467 of WIPO, Arbitration and Mediation Center)

In an UDRP complaint, the complainant must prove each of the following three elements of a domain name dispute. If the UDRP panel finds any one element is not met, the claim fails.

  1. The domain name registered by the respondent must be identical or confusingly similar to a trademark or service mark in which the complainant has trademark rights, either common law or federally registered.
  2. The respondent has no rights or legitimate interests in the domain name; and,
  3. The domain name has been registered and is being used in bad faith.

In Goldline International, Inc. v. Gold Line (Case No. D2000-1151 of WIPO, disputed domain name: “goldline.com”) it was held that:

  1. Decision

Complainant has failed utterly to establish two of the three elements of the Policy: that Respondent lacks legitimate rights or interests in the domain name “goldline.com”, and that Respondent registered and is using the domain name in bad faith. The Panel therefore denies the Complainant’s request that the domain name be transferred from Respondent to Complainant and declares that the Complaint was brought in bad faith and thus constitutes Reverse Domain Name Hijacking.

A UDRP dispute can result in either of the following:

  1. The domain name being transferred to the complainant (most common result);
  2. Cancellation of the domain name; or
  3. The complaint being denied.

In case of Tata Sons Ltd vs. mmt (makemytrip) admin/ (Case No. D2009-0646 of WIPO, disputed domain name: oktatabyebye.com) the disputed domain name was transferred to the Complainant i.e Tata Sons Ltd. However, in a proceeding filed before the Delhi High Court a settlement was reached between Tata sons Ltd and Makemytrip, where Tata Sons Ltd. have acknowledged that the Makemytrip is the current owner of the domain name, oktatabyebye.com, subject to the said domain name being used in the manner as agreed. Tata Sons Ltd had won the arbitration case before WIPO but has to settle it before the Hon’ble Delhi High Court and it appears that the original owner Makemytrip had legitimate right and interest in disputed domain name.

Under the URDP proceedings the respondent can specifically request the panel to examine whether the complaint was in the nature of reverse domain name hijackings. In R.V. Kuhns & Associates, Inc. v. Gregory Ricks / Whois Privacy Corp. / Domain Administrator (Case No. D2014-2041 of WIPO, disputed domain name: rvk.com) following was held:

  1. Reverse Domain-Name Hijacking

Respondent has asked the Panel to find that this is a case of Reverse Domain Name Hijacking.

“Reverse Domain Name Hijacking means using the Policy in bad faith to attempt to deprive a registered domain-name holder of a domain name.” Rules, paragraph 1.

Complainant knew that Respondent registered the disputed domain name several months prior to Complainant’s claimed date of first use of its mark. Complainant must therefore have been aware that Respondent cannot have registered the disputed domain name in bad faith, since he cannot possibly have known of Complainant’s as-yet-nonexistent claim to the mark.

 

Complainant is not saved by its allegation that its trademark use began in 1992. First of all, that allegation was made only in the amended, not original, Complaint, and accordingly the original Complaint was not a good faith filing. Secondly, even if Complainant believed in good faith that its 1992 letter evidenced trademark use, it did not have a basis to believe that Respondent was aware of this letter or of any other evidence of Complainant’s alleged claim of right to the RVK mark.

Accordingly, the Panel finds that Complainant engaged in Reverse Domain Name Hijacking.

Even otherwise the URDP rules provides for considering the issue of reverse domain name hijacking independently by panellist i.e, without request from the Respondent. The Rules provide (paragraph 15(e)):

“If after considering the submissions the Panel finds that the Complainant was brought in bad faith, for example in an attempt at reverse domain name hijacking or was brought primarily to harass the domain name holder, the Panel shall declare in its Decision that the Complaint was brought in bad faith and constitutes an abuse of the Administrative Proceeding.”

In iPayment, Inc. v. Domain Hostmaster, Whois Privacy Services Pty Ltd / Kwangpyo Kim, Mediablue Inc (Case No. D2015-1014 of WIPO, disputed domain name: ipayments.com) it was held:

Reverse Domain Name Hijacking

In light of the non-disclosure issues described above, the Panel wishes to consider the issue of reverse domain name hijacking. Although Respondent has not specifically asked for this relief, the Panel is entitled to pursue this inquiry if circumstances warrant.

WIPO Proceedings No Bar to Court Action:

The Uniform Domain Name Dispute Resolution Policy (UDRP) was created by the Internet Corporation for Assigned Names and Numbers (ICANN), an internet regulating body. The UDRP applies to every domain name registrant that registers its domain name through an ICANN-accredited registrar. The UDRP provides for an ‘administrative proceeding’ (eg, a WIPO proceeding) in disputes between domain name owners and trademark owners. The UDRP also explicitly provides that a UDRP proceeding does not bar a subsequent court proceeding. UDRP 4(k) states in part:

Availability of court proceedings. The mandatory administrative proceeding requirements set forth in Paragraph 4 shall not prevent either you [the domain name registrant] or the complainant from submitting the dispute to a court of competent jurisdiction for independent resolution before such mandatory administrative proceeding is commenced or after such proceeding is concluded.

Indian court and WIPO(URDP)/NIXI(INDRP) proceedings:

In the Satyam Infoway Ltd vs Siffynet Solutions Pvt. Ltd, (2004 Supp(2) SCR 465) Supreme Court observed that-

“…since the internet allows for access without any geographical limitation, a domain name is potentially accessible irrespective of the geographical location of the consumers. National laws may be inadequate to effectively protect a domain name. The lacuna necessitated international regulation of the domain name system (DNS). This international regulation was effected through the World Intellectual Property Organization (WIPO) and the Internet Corporation for Assigned Names and Numbers (ICANN).

In the Stephen Koeing vs Arbitrator Nixi And Anr. (FAO (OS) 42/2012), Delhi High Court observed that-

  1. This Court notes that the INDRP mechanism of dispute resolution through arbitration would fall within the description of an arbitration agreement under Section 7 of the Arbitration and Conciliation Act, 1996. Therefore, awards made under the INDRP framework are to be tested in the light of the law applicable for Section 34, which means that the courts have narrow and circumscribed powers to interfere with arbitral tribunal’s determinations: if only the findings are based on patent legal errors, or contrary to terms of contract, or are so unreasonable that no reasonable man could have reached the conclusions that an arbitrator did, would interference be called for. The appellant has not been able to establish any of these elements. The award was, therefore, not liable to interference; the learned Single Judge said as much. We concur with his opinion. The appeal, therefore, fails and is dismissed without any order as to costs.

In Consim Info Pvt. Ltd vs Google India Pvt. Ltd,2010, the Madras High Court held that-

  1. The defendants 2 and 4 are unable to point out as to how the suit is barred by any law (so as to bring it within clause (d) of Order VII, Rule 11), except depending upon the Uniform Domain Names Dispute Resolution Policy (UDRP) of the Internet Corporation for Assigned Names and Numbers (ICANN). But, I have already pointed elsewhere that the jurisdiction conferred upon this Court, is not ousted by the said Policy. Therefore, the case will not even fall under clause (d) of Order VII, Rule 11.

In remithome Corporation v. Samar Pupalla a/k/a Times of Money Ltd. a/k/a Times Online Money ltd (Claim Number: FA0712001124302, disputed domain name: remit2home.com> and <remit2home1.com) the National Arbitration Forum ordered that disputed domain names be transferred from Respondent to Complainant.

In the same disputed domain case of Times Of Money Limited vs Remithome Corporation & Another for identical two domain name the two judge bench upheld the single bench order that the NOIDA Court alone was the forum of choice, and that it had to be approached in the event of dispute by one or other party, to the exclusion of other courts. The domain name remit2home.com and remit2home1.com stands registered in the name of Times of Money Ltd and not transferred to remithome corporation.

OTHER Case:

In HER MAJESTY THE QUEEN, in right of her Government in New Zealand, as Trustee for the Citizens, Organizations and State of New Zealand, acting by and through the Honourable Jim Sutton, the Associate Minister of Foreign Affairs and Trade v. Virtual Countries, Inc (Case No. D2002-0754 of WIPO, disputed domain name newzealand.com) held that-

Reverse Domain Name Hijacking

Have those responsible for this Complaint used the Policy in bad faith to attempt to deprive the Respondent, a registered domain name holder, of the Domain Name? In addressing this question, the members of the Panel were unanimous in concluding that the filing of a complaint in the knowledge that the complaint is unmeritorious constitutes ‘use of the Policy in bad faith’ within the meaning of paragraph 1 of the Rules.

Prior to reading the Respondent’s supplementary submissions, the members of the Panel were divided on the question of reverse domain name hijacking. It seemed to some of the Panel that there might just be enough case law under the Policy (e.g. the <barcelona.com> decision) to encourage those responsible for the Complaint to hold a genuine belief in the merits of the Complaint.

 

However, having read the Response of the New Zealand Government to the WIPO Secretariat’s questionnaire referred to above, the Panel is unanimous in its view that when the Complaint was launched, those responsible for the Complaint, the New Zealand Government, were well aware that a claim to trademark and service mark rights in respect of NEW ZEALAND was baseless. Moreover, that document makes it clear that the New Zealand Government regards the protection of country names (qua country names) as being outside the scope of the Policy and does not approve of the Policy being extended to cover those country names, which are not trademarks.

There might have been scope for an argument in mitigation that the limb of the New Zealand Government responsible for the Complaint is the Ministry of Foreign Affairs and Trade whereas the limb of the New Zealand Government responsible for the Response to the questionnaire was the Ministry of Economic Development, but that argument has not been put to the Panel. Indeed, the Complainant has not responded to the allegation of reverse domain name hijacking despite the Panel’s invitation to do so. There has been no response to the Panel’s Procedural Order.

In the circumstances, the Panel has no hesitation in branding this misconceived Complaint as an abuse of the Policy, which has put the Respondent to needless expense.

The allegation of reverse domain name hijacking succeeds.

In TV Sundram Iyengar and Sons Limited v. P.A. Gordon (Case No. D2014-0814 of WIPO, disputed domain name: tvs.com), the panel did not make a formal finding of Reverse Domain Name Hijacking, however it was observed that Panel remains concerned at the decision to commence proceedings in such circumstances and the unsupported assertions contained in the Complaint.

In RPG Life Sciences Ltd. v. James Mathe (Case No. D2013-2094 of WIPO, disputed domain: rpg.com), the Panel made a finding of Reverse Domain Name Hijacking against the complainant.

The cases of following nature results in Reverse Domain Name Hijacking:

  • Complainant’s lack of right
  • Respondent’s proven right
  • Respondent’s lack of bad faith
  • Complainant’s lack of candour

 

Rajni Sinha

Advocate Bombay High Court

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IPR

GOOGLE: Strategy to save from Genericide

A distinctive trademark has unlimited potential for commercial exploitation. The key to optimizing that value is making the right decisions at every step in the trademark lifecycle. The Life cycle of a trademark involves the planning, creation, registration, protection, maintenance and exploitation of the mark. Genericization occurs when their trademark becomes obsolete as a result of their very popularity and omnipresence. Neglect at any stage leads to genericization of any valuable and established brand. The phenomenon of genericization has been faced by many brands like aspirin (Bayer AG) and escalator (Otis Elevator Company) etc in past.

In case of trade mark “Google” the first reference found to “googling” as verb occurs within something posted online by google itself on 8 July 1998, back when Google was a still a search engine on the Stanford University website by Google co-founder Larry Page, who wrote on a mailing list: “Have fun and keep googling!”. Now, the Google Inc. is fighting a significant and strategic war to save the brand “Google” from genericization.

Google is one of the most valuable brands in the world. The company watchfully defends its trademark, both in and out of court. However, there is no imminent danger of losing its trademark protection. The popularity of Google’s brand, and how it has entered mainstream English usage as a verb (to google) and participle (googling), it may only be a matter of time it attains the genericization i.e the process of becoming generic, or “not sold or made under a particular brand name,” according to Webster’s dictionary. Google, however, is racing toward genericization with unprecedented speed, according to linguistics experts.

(An extract from New York Times of August 14, 2015, on page B1)

 

Googles Inc. strategic action:

  1. David Elliot and Chris Gillespie filed during a two-week period ending on March 10, 2012, by using a domain name registrar to acquire 763 domain names that combined the word “google” with another brand, e.g., googledisney.com, a person, e.g., googlebarackobama.net etc. Google Inc. promptly filed a complaint requesting transfer of the Domain Names pursuant to the Uniform Domain Name Dispute Resolution Policy (“UDRP”) incorporated into the domain name registrar’s Terms of Use. Responding to Google Inc. arbitration complaint, Gillespie asserted, inter alia, that the GOOGLE mark has become generic and that he should be permitted to use the Domain Names incorporating the GOOGLE mark in furtherance of his business plans. The UDRP panel ordered the Domain Names be transferred to Google Inc. Elliot then instituted the action before district court of Arizona by filing a complaint seeking cancellation of both the ‘502 and ‘075 marks and a declaration of the same. Gillespie also filed a petition with the U.S. Trademark Trial and Appeal Board (“TTAB”) requesting cancellation of the ‘502 Mark and the ‘075 Mark contending that the GOOGLE mark has become generic, The TTAB proceedings have been stayed pending resolution of case before district court of Arizona.

The district court of Arizona held following:

Accepting Plaintiffs’ evidence as true and drawing all justifiable inferences therefrom in Plaintiffs’ favor, a majority of the public uses the word google as a verb to refer to searching on the internet without regard to search engine used. Giving Plaintiffs every reasonable benefit, majority of the public uses google-as-verb to refer to the act of searching on the internet and uses GOOGLE-as-mark to refer to Defendant’s search engine. However, there is no genuine dispute about whether, with respect to searching on the internet, the primary significance of the word google to a majority of the public who utilize internet search engines is a designation of the Google search engine. Therefore, Defendant is entitled to judgment as a matter of law that the ‘075 and ‘502 Marks are not generic.

  1. Google’s Rules for Proper Usage of its trademarks include, among many others, the following requirements:
  • Use the trademark only as an adjective, never as a noun or verb, and never in the plural or possessive form.
  • Use a generic term following the trademark, for example: GOOGLE search engine, Google search, GOOGLE web search.
  • Don’t use Google trademarks in a way that suggests a common, descriptive, or generic meaning.

 

  1. Google announced on 10 August, 2015 that it was creating an umbrella organisation called Alphabet Inc., encompassing Google itself and its many satellite companies. It appears the unexpected move is Google’s effort to protect its valuable brand and keep its name from becoming a generic term for searching the internet.

Google in a press release said the “newer Google is a bit slimmed down,” and focused on its main internet products. The other interests of former Google, such as life sciences, are to be managed by “a strong CEO who runs each business,” while Google Inc., still the heavyweight, “will become a wholly-owned subsidiary of Alphabet.”

  1. Google’s strategy and focus on how its name is used even extends to Sweden, where the country’s Language Council wanted to add the word “ungoogleable” to a list of new words as meaning something that can’t be found on the Web using a search engine. Note: a search engine — not necessarily Google’s.

Google objected and asked for changes showing the expression specifically refers to Google searches and a disclaimer saying Google is a registered trademark.

  1. The first recorded Cease-and-Desist letters from Google Inc was to Paul McFedries, who runs the lexicography site Word Spy, received a firmly worded letter after he added “google” to his online lexicon. The Google Inc. asked him to delete the definition or revise it to take account of the “trade mark status of Google”. He opted for the latter and it specifically cites that google is trademark of Google Inc.

Frank Fuchs, a regular reader and tip provider created a rather innocent page titled “Guide On How To Get Your Business Listed On Major Local Search Engines”. On it, he mentions local search engines like Yahoo Local, Ask City or Google Maps, as well as yellow pages services such as GoYellow.de. He was served with Cease-and-Desist letters from Google Inc.

 

  1. The google has been capitalising the first letter of the mark, “Google” to avoid its use as noun or verb.

Google is trying hard to tame the demon of genericization by actively considering the issue and educate the customer about the usage of the term.

Rajni Sinha

Advocate Bombay High Court

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LEGAL METROLOGY

The Legal Metrology Act, 2009: Section 36(1)

The legal community has been discussing whether section 36(1) of the Legal Metrology Act, 2009 provides for  penal action for mis-declaration/false declaration or non-declaration or both. The section 36(1) reads as follows:

  1. Penalty for selling, etc., of non-standard packages. –

(1) Whoever manufactures, packs, imports, sells, distributes, delivers or otherwise transfers, offers, exposes or possesses for sale, or causes to be sold, distributed, delivered or otherwise transferred, offered, exposed for sale any pre-packaged commodity which does not conform to the declarations on the package as provided in this Act, shall be punished with fine which may extend to twenty-five thousand rupees, for the second offence, with fine which may extend to fifty thousand rupees and for the subsequent offence, with fine which shall not be less than fifty thousand rupees but which may extend to one lakh rupees or with imprisonment for a term which may extend to one year or with both.

(emphasis added for ease of reference purpose).

Legality of Marginal Note:

Penalty for selling, etc., of non-standard packages”, the said expression exists as marginal note as evident from published gazette notification. A marginal or side-note is inserted by the draftsman as an indication, but not as a definition, of the contents of the section. It is established law that marginal note shall not be taken note of when the provisions of the section are clear and unambiguous and at any rate the marginal note cannot restrict the meaning of the Section. In Director of Public Prosecutions Vs. Schildkamp, (1969) 3 All ER 1640, Lord Reid opined that a side note is a poor guide to the scope of a section for it can do no more than indicate the main subject with which the section deals and Lord Upjohn opined that a side note being a brief précis of the section forms a most unsure guide to the construction of the enacting section and very rarely it might throw some light on the intentions of Parliament just as a punctuation mark. Thus it cannot be said that this section solely deals with offence related to dealing in “non-standard packages”. The “non-standard package” package is not defined under the Legal Metrology (Packaged Commodities) Rules, 2011 but the section 2(o) of the Legal Metrology (Packaged Commodities) Rules, 2011 defines “standard package” means a package containing the specified quantity of a commodity.

In contrast the section 36(1) not only deals in matter related to quantity of commodity but other declarations required as per the Legal Metrology (Packaged Commodities) Rules, 2011. Thus ex facie this marginal note cannot restrict the meaning of said section 36(1) to “non-standard package” i.e. not confirming to quantity mis-declaration only.

Expression: “Conform to the declarations on package”

Ex Facie the expression “conform to the declarations on package” signify that packaged commodities should confirm to declaration made on the package. However, on careful reading it also leads to interpretation that (i) packaged commodities should confirm to declaration on package as well as (ii) the declaration on package should be as required/provided in the Legal Metrology Act.

Whether such extended interpretation is as per intention of legislature or letter and spirit of section needs to be examined. The responsibility of correct declaration regarding commodity is on manufacturers, packers, importers, sellers and distributors and other entity dealing in such product before being sold to the retailer. There is no dispute that declarations on package should be as per the provision of the Legal Metrology Act (Section 18).

What needs to be examined whether any declaration (including non-declaration) on package not conforming to declarations as provided in the Legal Metrology Act, 2009 is a contravention covered under penal provision of section 36(1) of this Act or in other word section 36(1) solely deals with non-declaration and/or mis-declaration/false declaration.

When any or all of the statutory declarations are not there on pre-packaged commodity in the prescribed format, the provisions of Section 18(1) read with the provisions of Rule 6 of the Legal Metrology (Packaged Commodities) Rules, 2011 are violated. Thus there is breach of Rule 6 of the Legal Metrology (Packaged Commodities) Rules, 2011. The Rule 32 of the Legal Metrology (Packaged Commodities) Rules, 2011(as amended by GSR 385(E) dated 14.05.2015) provides for punishment for breach of rules. The Rule 32 reads as follows:

  1. Penalty for contravention of Rules – (1) Whoever contravenes the provisions of rules 27 to 28, he shall be punished with fine of four thousand rupees.

(2) Whoever contravenes any other provision of these rules, for the contravention of which no punishment has been provided he shall be punished with fine of two thousand rupees.

(3) Sum of compounding of offences.-The sum of compounding of offences committed under the said Act shall be as specified in the following Table, namely:

 

TABLE

Sr.No. Offence Compounding amount
(1) (2) (3)
    If the application for compounding is by retailers or wholesale dealers If the application for compounding is by manufacturers or importers
1.     Contravention of Section 29 Rupees two thousand Rupees ten thousand
2.     Contravention of sub-section (1) of Section 36 Rupees five thousand Rupees twenty five thousand
3.     Contravention of sub-section (2) of Section 36 Rupees ten thousand Rupees fifty thousand
4.     Selling of products for more than the maximum retail price Rupees two thousand Rupees five thousand

In case of IMS Mercantiles Pvt. Ltd. vs Union of India and Ors..( W.P.(C) 4784/2014 and CM No.9529/2014, Delhi High Court) the appellant has not declared Rs.in declaration regarding maximum retail price (‘MRP 299.00’). The compounding of offence of such non-declaration was upheld under Rule 32(3) of the Legal Metrology (Packaged Commodities) Rules, 2011as Contravention of sub-section (1) of Section 36 of the Legal Metrology Act, 2009. However, in this case it was not in dispute that the offence was punishable under Section 36 of the Act (para11). Thus Hon’ble Delhi High Court per se had no occasion to examine the applicability of Section 36(1) of the Legal Metrology Act, 2009 for non-declaration of Rs.’.

In case of Abhinash Bajaj vs State of Assam (CR 117/12, JMFC Court,  Sonitpur, Tezpur, Assam), the JMFC court also held that the penal provision for violation of Rule 6(1) (e) (non-declaration of RSP) of the Legal Metrology (Packaged Commodities) Rules, 2011 is Sec. 36 (1) of the Legal Metrology Act, 2009 (Para12).

Interpretation of following Expression:

I. “Any pre-packaged commodity which does not conform to the declarations on the package as provided  in this Act”.

If the expression “on the package” is deleted for the sake of interpretation, it specifically extends the meaning that declaration should be as provided under the Act (Section 18(1)) to escape from contravention. It is more so as the section 18 of the Metrology Act, 2009 provides for declaration to be made on pre- package commodity (Non-Declaration).

II. “Any pre-packaged commodity which does not conform to the declarations on the package as provided  in this  Act”.

If the expression “as provided in this act” is deleted for the sake of interpretation, it specifically extends the meaning that commodity should confirm to the declaration on the package for escaping from contravention (false declaration/mis-declaration).

III. “Any pre-packaged commodity which does not conform to the declarations on the package as provided in this Act”.

If the expressions “on the package” & “as provided in this act” are deleted, than the question arise, “Which declarations”, the answer will be declaration “on the package”. Further, the question will also arise whether it can be any declarations on package; the answer to this lies in “as provided in this act”. Thus it is amply clear that declarations should be on package as per the provision of the Legal Metrology Act, 2009 and not any declaration “which is not on package” and not as “as provided in this act”. If the declaration on the package is not as per the provision of the Legal Metrology Act, 2009, it shall be contravention within the spirit and meaning of Section 36(1) of the Legal Metrology Act, 2009. Thus it will include all cases of non-declaration as per the provision of the Act and also such declarations not as per mode and manner prescribed under the Legal Metrology Act, 2009 (Non-declaration).

The word “declarations” is joined with the expression “the package” with preposition “ON”.  The word “declarations” is also joined with the expression “provided in this act”” with preposition “AS”.

Prima facie, it appears that pre-package commodity should conform to both (1) declaration as per the Provision of the Act & (2) declaration on the package. Further, the “declaration” has to be invariably on package whether or not it is expressly mentioned “on package” or not and also “declaration on package” is single expression defined and provided under section 18 of the Legal metrology Act, 2009. Legally, the expression “on package” should have no bearing on interpretation as declaration per se refers to declarations on package. In view of this the interpretation given above (at serial No. I and III) by deleting expression “on the package” and/or “as provided in this act” seems to be logical and legally sustainable.

However, the offence of mis-declaration and false declaration which is greater vice appears to be out of scope of section 36(1) of the Legal Metrology Act, 2009 under such interpretation and it will attract lesser penalty under the Rule 32(2) of the Legal Metrology (Packaged Commodities) Rules, 2011 if not provided under any provision but there are other provisions in the act which deals with offence like mis-declaration of weight (Section 30) etc.

The first and foremost principle of interpretation of a statute in every system of interpretation is the literal rule of interpretation. Where the words of a statute are absolutely clear and unambiguous, recourse cannot be had to the principles of interpretation other than the literal rule, vide Swedish Match AB vs. Securities and Exchange Board, India,( AIR 2004 SC 4219).

All the forgoing discussion specifically concludes the premises that section 36(1) of the Legal Metrology provides for non-declarations on the package as per provision of the Legal Metrology Act, 2009.

Rajni Sinha

Advocate, Bombay High Court.

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