Editorial 1: Shining in the Light
Context: SC Collegium’s move to go public on government’s objections to its nominees is welcome but selective
Introduction
- The Supreme Court Collegium’s decision to reiterate its recommendation on the appointment of five advocates as high court judges, and its going public with the reasons for both its reiteration and the government’s objections on Thursday is, therefore, an important moment.
Collegium system
- Collegium system is the system of appointment and transfer of judges that has evolved through judgments of the SC, and not by an Act of Parliament or by a provision of the Constitution.
- The Supreme Court Collegium is headed by the Chief Justice of India and comprises four other senior most Judges of the court.
- The High Court collegium is led by the incumbent Chief Justice and two other senior most judges of that court.
Issues in the Collegium system
- The process for appointments and transfers of judges of the Supreme Court and high courts is one of the system’s dark areas.
- The complete exclusion of the executive from the judicial appointment process created a system where a few judges appoint the rest in complete secrecy.
- There is no specific criteria for testing the candidate for the post of Chief Justice of India which leads to wide scope for nepotism and favouritism.
- It is a close door mechanism as there are no official minutes of collegium proceedings.
- Collegium has not been able to prevent the increasing cases of vacancies of judges and cases in courts.
Recent developments
- More transparency, more public reasoning in this process is much needed. It is also to be hoped that the light of reason will illuminate the way for the appointment of India’s first openly gay judge.
- On the name of Saurabh Kirpal, first recommended by the SC Collegium on November 11, 2021, the Collegium has refuted the government’s objections regarding his sexual orientation by saying: “… decisions of the Constitution Bench of this court have established the constitutional position that every individual is entitled to maintain their own dignity and individuality based on sexual orientation.”
- And: “His appointment will add value to the Bench of the Delhi High Court and provide inclusion and diversity”. That is India’s apex court hearteningly moving the needle on fundamental human rights and freedoms, including the liberty to make sexual choices. And yet, that cannot be the end of this particular story.
Wat Forward
- The Collegium system should ensure independence, reflect diversity, demonstrate professional competence and integrity.
Editorial 2: What constitutes a trademark violation: Subway vs Suberb in Delhi High Court
Context: The Delhi High Court has ruled that Subway cannot claim "exclusivity" or "monopoly" over "sub", the first part of its trademark "Subway", when used in the context of eateries which serve sandwiches and similar items. What was the case? What is a trademark?
Introduction
- A ‘sub’ is not only a sandwich from Subway, Delhi High Court ruled last week, and dismissed a case of trademark infringement brought by the global fast food chain against Suberb, a Delhi-based restaurant. The term ‘sub’ is widely used for submarine sandwiches — a cylindrical bread roll slit lengthwise and filled — the court said on January 12.
What is Trademark?
- A trademark is a symbol, design, word or phrase that is identified with a business. When a trademark is registered, its owner can claim “exclusive rights” on its use.
- The Trademark Act,1999, governs the regime on trademark and its registration. The Act guarantees protection for a trademark that is registered with the Controller General of Patents, Designs, and Trademarks, also known as the trademark registry.
Violation of trademark
- Using a registered trademark without authorisation of the entity that owns the trademark is a violation or infringement of the trademark.
- Using a substantially similar mark for similar goods or services could also amount to infringement. In such cases, courts have to determine whether this can cause confusion for consumers between the two.
- DECEPTIVE SIMILARITY: The law states that a mark is considered deceptively similar to another mark if it nearly resembles that other mark, confusing the consumer in the process. Such deception can be caused phonetically, structurally or visually.
- PASSING OFF: Say, a brand logo is misspelt in a way that’s not easy for the consumer to discern.
- The Supreme Court has said that passing off is a “species of unfair trade competition or of actionable unfair trading by which one person, through deception, attempts to obtain an economic benefit of the reputation which other has established for himself in a particular trade or business”.
- In the Subway case, the HC did not look into the issue of passing off. Justice C Hari Shankar said that to establish passing off, Subway would have to demonstrate that a “person of average intelligence” would be confused between the goods and services of Subway and Suberb because of the manner in which the Suberb mark is used.
What Subway argued in court
- Subway argued that the brand name and logo “Suberb” was deceptively similar to “Subway”, and that the combination of green and yellow in Suberb was identical to the Subway trademark.
- In December 2022, Suberb offered to change the colour combination used in the signage, as well as the names of its sandwiches “Veggie Delicious” and “Sub on a Club” to “Veg Loaded Regular” and “Torta Club” respectively.
- Suberb argued that Subway is a “well known brand”, and that a consumer would not walk into a Suberb outlet confusing it with Subway.
Decision of the court
- Subway, the court held, cannot claim “exclusivity” or “monopoly” over “sub”, the first part of its trademark “Subway”, when used in the context of eateries which serve sandwiches and similar items. It also held that once the dispute over the “sub” part was resolved, there was “obviously no similarity” between the two others parts of the marks — “way” and “erb”.
Conclusion
- The HC held that “sub” was common to both marks; however, there was no likelihood of confusion to the public as the marks when considered as a whole did not sound the same. Since the two marks did not sound similar, and the defendants had agreed to change the lettering, font, and colour scheme, no case for deceptive similarity was made out.