Recently, the Department for Promotion of Industry and Internal Trade (DPIIT) published the proposed Trade Marks (1st Amendment) Rules, 2024 inviting comments on the proposed rules by February 09. However, much like the proposed Patent (2nd Amendment) Rules, 2024, the proposed Trade Mark Rules are marred with ambiguities. Assessing the proposed rules from the lens of the SARAL framework, we are pleased to bring to you this guest post by Pragya Singh and Lakshita Handa. Pragya Singh and Lakshita Handa are Research Fellows with the Legal Design and Regulation team at Vidhi Centre for Legal Policy. Views expressed are solely of the authors and there is no other professional conflict of interest.
A SARAL Analysis of the Proposed Trade Marks (1st Amendment) Rules, 2024
By Pragya Singh and Lakshita Handa
The Jan Vishwas (Amendment of Provisions) Act, 2023 (“Jan Vishwas Act”) is an omnibus legislation that amends various Acts across Central Ministries and Departments for decriminalisation of minor violations to promote ease of living and doing business in the country. The Jan Vishwas Act also amends the Trade Marks Act, 1999 (“TM Act”) to substitute the criminal penalty under section 107 with a civil penalty. This article analyses the draft Trade Marks (1st Amendment) Rules, 2024 (“TM Amendment Rules”) which have been published by the Ministry of Commerce and Industry to lay down the procedure for adjudicating administrative penalties. This piece analyses the form and substance of the TM Amendment Rules from the standpoint of plain drafting and other allied principles which go beyond plain language but extend to the substance of laws and delegated legislation. These overarching principles developed by the Vidhi Centre for Legal Policy, together constitute the SARAL framework (Simple, Accessible, Rational and Actionable Laws) and present a nuanced and principled approach to enhance the quality and effectiveness of legal texts.
SARAL as a Building Block to the Plain Language Movement
Simplification of legalese, aimed at creating accessible, transparent, and comprehensible legal texts, has been gaining impetus globally. The Plain Language Movement (“PLM”), which has gained traction in different parts of the world, has a twofold objective: (i) to make legal texts accessible for citizens by fostering a better understanding of how legal instruments govern them; and (ii) drafting laws in a manner which diminishes scope for ambiguity and therefore enables smoother interpretation and implementation.
The SARAL framework goes beyond grammar and syntax-based approaches of the PLM. It seeks to reform the landscape of Indian legislation by holistically improving current drafting practices- in both form and substance. Hence, while the PLM largely concerns itself with the words we use and how we use them, the SARAL approach provides guidance on drafting a law which is not only simple but also coherent, accessible, and easily implementable.
Rationality and Actionability
Employing a SARAL approach to analyse the TM Amendment Rules must first trace the genesis of the rules and contextualise the purpose behind their formulation. The object behind the enactment of the Jan Vishwas Act was to promote ease of doing business by reducing compliance burden for individuals and industry. This initial idea was further tempered by the practice of administrative penalties (“APs”) which may be used for non-compliance with or contravention of statutory obligations. Since APs do not require judicial intervention, they are assessed and imposed by administrative authorities in accordance with graded mechanisms contained in the statute (or delegated legislation) having regard to the nature and gravity of the offence. While APs have been considered as an alternative to traditional penal action which involves judicial intervention, they have certain limitations – the most prominent being a wide degree of discretion provided to administrative officials. Hence, there is a need to code in the principles of natural justice prior to the imposition of APs to ensure that the affected party is given a reasonable opportunity to be heard. Further, ample safeguards must be put in place to fetter discretion and prevent abuse of power.
While the TM Amendment Rules provide a structure for penalty adjudication, they do not effectively lay down the prerequisite for filing a complaint in the first place. Rule 105A (2) provides that each complaint should be accompanied by a statement setting out the facts upon which the Applicant relies and evidence in support of the statement. However, the exact particulars to be appended to the statement as well as details of the evidence is to be prescribed. Given that these Rules already constitute delegated legislation, further prescription creates ambiguity and leaves out crucial details of the process.
Rule 105B (1) further provides that an adjudicating officer may be appointed by virtue of the newly introduced Section 112A of the TM Act. It is also stated that the role of the adjudicating officer shall be limited to offences committed by a ‘person’ under Section 107 of the TM Act. This formulation, similar to the formulation under the Patents (2nd Amendment) Rules, 2024, excludes offences by companies under Section 114 of the TM Act. This formulation prevents the adjudicating officer from taking any action in respect of offences by companies which clearly reveals a lacuna in the drafting. For certainty of adjudicatory proceedings, it is imperative that offences by companies should also be brought within the scope of the TM Rules.
The newly introduced Section 112A of the TM Act provides that the Registrar may, by an order, authorise any officer referred to in section 3 of the TM Act to be an adjudicating officer for holding an inquiry and imposing penalty under the provisions of the Act. Section 3 of the TM Act provides that the Central Government may appoint a person to be known as the Controller-General of Patents, Designs and Trademarks, who will be the Registrar of Trade Marks for the purpose of the TM Act. Given that this provision is of a general nature, the rules should have further elaborated on the rank of the officers who can be appointed as an adjudicating authority.
Rule 105D (2) lays down the factors that must be taken into account while adjudicating the quantum of penalties, however, these factors do not incorporate subject matter specific considerations, particularly with respect to the trademarks framework.
Notably, Rule 105H states that the adjudication of penalties shall be in accordance with the principles of natural justice. Since ‘principles of natural justice’ is a broad term which brings into its gamut a wide range of tenets and standards, the generalised use of the term does not prescribe the procedural safeguards which the adjudicating authority must follow in any case.
The lack of coherence in the drafting of the TM Rules is also reflected in the sequencing of provisions which does not follow a chronological method and convolutes the process further.
Simplicity and Accessibility
Within the SARAL framework, the overarching principle of drafting a simple law focuses on using words used in common parlance, employing short sentences, limiting one clause to one idea, and maintaining grammatical consistency. Accessibility, on the other hand, seeks to overcome physical and linguistic barriers which may preclude access to laws and other legal documents. Linguistic barriers may be overcome by publishing laws in regional languages and publishing FAQs and explainers for common citizenry. Publishing legal text in a manner which makes it readable for persons with visual impairment may be an important step towards promoting physical accessibility.
The convoluted structure of the TM Amendment Rules interferes with their comprehensibility. Since these Rules may have wide reaching implications for the general public and elaborate on the manner in which penalties may be adjudicated and imposed, they should have been accompanied by appropriate explainer notes and FAQs further breaking down the process into more digestible sections. The core tenet of simple drafting, i.e., ‘one idea per clause’ has not been followed as is evidenced by run-on sentences and complex legalese.
While the shift to administrative penalties is a welcome step– which is envisaged to promote ease of living and doing business whilst reducing pendency in courts– the manner in which adjudicatory powers are exercised must be carefully circumscribed and worded in unambiguously.
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- Source: https://spicyip.com/2024/02/a-saral-analysis-of-the-proposed-trade-marks-1st-amendment-rules-2024.html
