NMIMS GLOBAL ACCESS

SCHOOL FOR CONTINUING EDUCATION (NGA-SCE)

COURSE: BUSINESS LAW
INTERNAL ASSIGNMENT APPLICABLE FOR DECEMBER 2022 EXAMINATION
Content: -
➢ Introduction to Biological Diversity act, 2002
➢ Mention provisions and features of Biological Diversity Act, 2002
Answer [1]. India is known to the world for its diversified biological resources. Arising out
of its obligations as a signatory to the United Nations Convention on Biological Diversity
held at Rio de Janeiro in 1992, and “to provide for conservation of Biological Diversity,
sustainable use of its components and fair and equitable sharing of benefits arising out of the
use of biological resources and knowledge”, the Biological Diversity Act, 2002 (BD Act) was
enacted by India to regulate access to, and use of, its biological resources.
Biological diversity refers to the variety of the life forms that exist in our ecosystem. It
describes the richness and variety of life on earth. It is the most complex and important
feature of our planet. Without biodiversity, life would not sustain.
The term biodiversity was coined in 1985. It is important in natural as well as artificial
ecosystems. It deals with nature’s variety, the biosphere. It refers to variabilities among
plants, animals and microorganism species.
Biodiversity includes the number of different organisms and their relative frequencies in an
ecosystem. It also reflects the organization of organisms at different levels.
Biodiversity holds ecological and economic significance. It provides us with nourishment,
housing, fuel, clothing and several other resources. It also extracts monetary benefits through
tourism. Therefore, it is very important to have a good knowledge of biodiversity for a
sustainable livelihood.

The Biological Diversity Act, 2002 was passed by the parliament of India to protect
biodiversity and facilitate the sustainable management of biological resources with the local
communities.
The Act’s main objective is to ensure the conservation of biological diversity, sustainable use
of its components and fair usage of its resources in order to prevent overuse or eventual
destruction of biodiversity.
Since India is one of the most biologically diverse nations in the world, this act is a necessity
to protect its biological heritage.
The salient features of the Biological Diversity Act are as follows.

• Regulation of access to biological resources of the country

 • Conservation and sustainability of biological diversity
• Protecting the knowledge of local communities regarding biodiversity
• Secure sharing of benefits with local people as conservers of biological resources and
holders of knowledge and information relating to the use of biological resources
• Protection and rehabilitation of threatened species
• Involvement of institutions of state governments in the broad scheme of the
implementations of the Biological Diversity Act through the establishment of
dedicated committees.
• To ensure fair and equitable benefit sharing arising from the utilisation of those
biological resources and knowledge.
• To ensure the sustainable use of the components of the biological diversity.
• All foreign nationals and organisations must take prior approval from the NBA in
order to obtain any biological resources or knowledge.
• All the Indian scientists and individual must take prior approval from the NBA for
transferring the results of their research to foreign nationals or organisations.
• Protect the rich biodiversity and the associated knowledge of India Against use by
foreign individuals and organisation if such organisations and individuals do not share
the benefits that arise due to such biodiversity and organisations.
• Indian organisations must give intimation to the respective SBBs if they wish to
obtain any bioresource and the SBB has a right to restrain such organisation from
obtaining the said resources if the organisation violates conservation, sustainable use
and benefit sharing.
• No person can apply for any Intellectual Property Right by any name in or outside
India for any invention that is based on a research or biological resource obtained
from India without obtaining a prior approval from the NBA.
• Certain biodiversity areas should be declared as biological diversity heritage sites in
order to conserve and develop these areas.

National Biodiversity Authority

In order to carry out the provisions of the act, the National Biodiversity Authority (NBA) had
been set up under the Ministry of Environments and Forest by the Government of India in
2003. The NBA is a statutory, autonomous body headquartered in Chennai. State
Biodiversity Boards (SBB) were also created in the 29 states along with biological
management committees for each local body.
Under this act, the Central Government in consultation with the NBA:

• Shall notify threatened species and prohibit or regulate their collection, rehabilitation,
and conservation. Check out the IUCN Red list to know more about endangered
species.
• Designate institutions as repositories for different categories of biological resources
The functions of the National Biodiversity Authority are as follows

• Monitoring and prevention of actions prohibited under the Act.

• Providing advice to the government on how best to conserve biodiversity in India.
• Prepare a report on how the government can select biological heritage sites.
 • Make concrete steps to prevent the grant of intellectual property rights regarding
locally used biological resources or allied traditional knowledge.
Structure of the NBA
The National Biodiversity Authority consists of the following members to be appointed by
the central government, namely:

• A Chairperson.
• Three ex officio members, one representing the Ministry dealing with Tribal Affairs
and two representing the Ministry dealing with Environment and Forests.
• Seven ex-officio members to represent respectively the Ministries of the Central
Government dealing with:
o Agricultural Research and Education
o Biotechnology
o Ocean Development
o Agriculture and Cooperation
o Indian Systems of Medicine and Homoeopathy
o Science and Technology

Summary:

o The value of biodiversity is of major importance as without it, life would not
sustain on earth. Biodiversity is of importance as it offers different species,
plants, animals, and bacteria, as well as their frequencies on this sphere. A
high level of biodiversity is generally regarded as beneficial and desirable, as
it leads to community stability and increased productivity.
o In this article, we will look at why sustaining a high level of biodiversity in a
given location is critical to its biotic community. Biodiversity is essential for
ecological balance to be maintained. It also aids human survival and the
survival of other species in the ecosystem. It also aids in the maintenance of
high productivity and human wellness.

The salient features of the Biological Diversity Act 2022are as follows: Regulation of
the biological resources in the country.

• Notify the threatened species and control or restrict their restoration, collection, and
conservation.
• The Biodiversity Act 2002 also protects the knowledge of local communities regards
to biodiversity.
• Sustainability and conservation of biological diversity.
• Offences mentioned by the statute are defined as non-bailable and cognizable.
• To carry out the study involving biological resources of the nation.

Refer to Page no- 390 (10.2.9)

 • Answer [2].

Content: -
➢ Introduction to Competition Act,2002
➢ Mention objective of competition Act,2002
➢ Feature of Competition Act,2002
➢ Few Instances of Competition Act, 2002 where investigations and for
punishments are initiated/enforced

• The Competition Act, 2002 was enacted by the Parliament of India and governs
Indian competition law. It replaced the archaic The Monopolies and Restrictive Trade
Practices Act, 1969. Under this legislation, the Competition Commission of India was
established to prevent the activities that have an adverse effect on competition in
India. The Competition Act aims to prevent activities that have an adverse effect
on competition in India This article will give further details about the Competition
Act, 2002 within the context of the Civil Services Examination.

➢ Objective and Scope of Competition Act 2002

• The Competition Act is legislation that seeks to ensure that the interests of consumers
are protected against anti-competitive practices, promote and sustain market
competition, protect consumers' interests, and ensure the freedom of trade is carried
out by other participants in markets in India. The act applies throughout India and has
replaced the Monopolies and Restrictive Trade Practices Act (MRTP Act), 1969.
• Some importance objectives of the Competition Act,2002 are as follows:
• To provide a legal framework for ensuring the implementation of competition
policies.
• To prevent anti-competitions engaging in any such acts.
• To penalize organizations engaging in any such acts.
• To prevent of monopolies.
• To prevent needless intervention by the government.

Feature of Competition Act,2002

 • The following are the features of the Competition Act:
• 1. Anti-Agreements: Any individual or enterprises shall not deal in production
supply or distribution that may cause a negative impact regarding competition in
India. Any existence of such agreements is considered illegal.
• 2. Abuse of dominant position: In the event, an enterprise or an associated
individual, it is found to indulge in practices that are unfair or discriminatory in nature
shall be considered an abuse of dominant position. If a party is found to be in abuse of
its position, then they will be subjected to an investigation from the concerned
authorities.
• 3. Combinations: As per the act a combination is defined as terms which lead to
acquisitions or mergers. But should such combinations cross the limits as put forth by
the Act, then the parties involved would be under the scrutiny of the Competition
Commission of India.
• 4. Competition Commission of India: It is an independent body with the powers to
enter into contracts and should the contracts be broken; they can sue the parties
involved. The Commission consists of a maximum of six members who are tasked
with sustaining and promoting the interests of consumers in order to foster an ideal
environment for economic competition.
• The other function of the Commission is to advise the Government of India regarding
competition in the economy and create public awareness on the same issue.

Competition Commission of India Imposed Penalty on Tamil Nadu Theatre Owners’

Association

• Competition Commission of India (CCI) imposed the penalty of 41393 Rupees on

Tamil Nadu Film Exhibitors’ Association (TNFEA). now known as Tamil Nadu
Theatre Owners’ Association). The penalty was imposed after the information filed by
Reliance Big Entertainment Pvt. Ltd. (RBEPL). Reliance Big Entertainment Pvt. Ltd.
(RBEPL) alleged that Tamil Nadu Theatre Owners’ Association contravened the
provisions of Section 3 and 4 of the Competition Act, 2002. RBEPL alleged that it
was entitled to distribute a film titled Osthe in Tamil language that was a remake of
Hindi film Dabang. However, TNFEA boycotted this film with an effort to secure a
claim of its members against a third-party Sun TV.

• CCI in its investigation concluded that the decisions and conduct of TNFEA in
respect of the boycott against film Osthe and other films dealt by Sun TV were in
contravention of the provisions of Section 3(3) (b).

Therefore, the penalty of 41393 Rupees was imposed at the rate of 10 percent of the
average turnover of the Association for the relevant last three years. The penalty
should be deposited within 60 days of receipt of the order of penalty. At the same
time, CCI also directed TNFEA to cease and desist from indulging in such anti-
competitive conduct in future.

About the Competition Act, 2002

• The Competition Act, 2002 was passed by the Parliament in the year 2002, to which the
President accorded assent in January, 2003. It was subsequently amended by the Competition
(Amendment) Act, 2007.
• In accordance with the provisions of the Amendment Act, the Competition Commission of
India and the Competition Appellate Tribunal were established.
• The Competition Commission of India is fully functional body with a chairperson and six
members.
• The provisions of the Competition Act relating to anti-competitive agreements and abuse of
dominant position were notified on 20 May 2009.

Indian National Shipowners Association versus oil and natural gas corporation limited

The present information was filed by Indian National Shipowners' Association (INSA)
(hereinafter, the 'Informant') under Section 19 of the Competition Act, 2002 (hereinafter, the
'Act') against Oil and Natural Gas Corporation Limited (hereinafter, the 'Opposite Party'/
'OP'/'ONGC') alleging contravention of the provisions of Section 4 of the Act.

❖ The Informant is a representative body of various ship owners formed in the year 1929.
At the time of filing of the information, it had 42 members which included Indian
shipping companies and offshore oilfield service providers.
❖ It is stated that ONGC, in order to undertake Oil & Natural Gas (hereinafter O&NG)
Exploration and Production (E&P) activities seek support services from offshore oilfield
services providers (such as the member companies of the Informant) pursuant to a
competitive bidding process.
❖ The Informant has claimed that ONGC possesses a dominant position in the hiring of
OSVs and owing to such dominant position, it had been able to put one-sided clauses in
the CHAs in the nature of boiler plate agreements, allegedly not open for negotiations.
❖ In addition to the above, the Informant alleged that the ONGC issued termination notices
for few contracts with its member companies which is indicative of abuse on its part
owing to the dominant position held by it.
❖ The Commission examined the aforesaid facts and after hearing both the parties, in a
preliminary conference held on 17.05.2018, was prima facie satisfied that the allegations
raised by the Informant in the information had merit.
Observations and findings of the DG
❖ DG observed that the present case pertained to allegations of abuse of dominant position
by ONGC as a procurer of services towards its suppliers
❖ The DG observed that the physical characteristics/end-use of goods, i.e., OSVs,
demonstrates that the relevant product comprises specialized vessels used for performing
 specific tasks to support offshore O&NG E&P activities, which in the present case
pertains to two specific OSVs, namely AHTSV and PSV.
❖ The DG analyzed the use of such vessels across the globe and found that OSV
deployment is directly linked to offshore E&P activity which is determined by oil prices.
If oil prices are high, then demand for OSVs is stimulated and as prices decline, the E&P
activities also decline, which led to idling of OSVs.

Summary: Competition Law emerged immensely in the last few years . Merger and
acquisition are the primary objectives of the Competition Act,2002 in fact, the merger and
acquisition are one of the reasons for the establishment of the Act. Thus, the offences
under these combinations enshrined under 5 and 6 of the Act must be noted. It is a tool to
implement and enforce competition policy and to prevent and punish anti-competitive
business practices by firms and unnecessary Government interference in the market.
Competition laws is equally applicable on written as well as oral agreement,
arrangements between the enterprises or persons.
Refer to Page no- 303(8.3), 304(8.3.1), 304(8.3.2), 325(8.8)

• Answer [3] A.

Content: -
➢ Introduction to Intellectual Property Rights
➢ Explain about Patents, Copyrights, Trade Secrets and Trademarks
The definition of intellectual property rights is any and all rights associated with intangible
assets owned by a person or company and protected against use without consent. Intangible
assets refer to non-physical property, including right of ownership in intellectual property.
Examples of intellectual property rights include:
• Patents
• Domain names
• Industrial design
• Confidential information
• Inventions
• Moral rights
• Database rights
• Works of authorship
• Service marks
• Logos
• Trademarks
• Design rights
• Business or trade names
• Commercial secrets
• Computer software
 There are four main types of intellectual property rights, including patents,
trademarks, copyrights, and trade secrets. Owners of intellectual property frequently
use more than one of these types of intellectual property law to protect the same
intangible assets. For instance, trademark law protects a product’s name, whereas
copyright law covers its tagline.
1. Patents
A patent is a document that represents certain rights that gives the creator or developer the
sole right over their creations. Patents are issued by an issuing authority of a country after
receiving the application by the owner of an invention. The right given by patents ensure that
the patent holder has right to make, use, manufacture and market the invention if the
invention satisfies certain stipulated conditions.
The three types of patents consist of:
• Design patents: Protection for the aesthetics of a device or invention. Ornamental
design patents include a product’s shape (Coca-Cola bottle), emojis, fonts, or any
other distinct visual traits.
• Plant patents: Safeguards for new varieties of plants. An example of a plant patent is
pest-free versions of fruit trees. But inventors may also want a design patient if the
tree has unique visual properties.
• Utility patents: Protection for a product that serves a practical purpose and is useful.
IP examples include vehicle safety systems, software, and pharmaceuticals. This was
the first, and is still the largest, area of patent law.
2. Trademarks
Trademarks protect logos, sounds, words, colours, or symbols used by a company to
distinguish its service or product. Trademark examples include the Twitter logo, McDonald’s
golden arches, and the font used by Dunkin.
Although patents protect one product, trademarks may cover a group of products. The
Lanham Act, also called the Trademark Act of 1946, governs trademarks, infringement, and
service marks.
3. Copyrights
Copyright law protects the rights of the original creator of original works of intellectual
property. Unlike patents, copyrights must be tangible. For instance, you can’t copyright an
idea. But you can write down an original speech, poem, or song and get a copyright.
4. Trade Secrets
Trade secrets are a company’s intellectual property that isn’t public, has economic value, and
carries information. They may be a formula, recipe, or process used to gain a competitive
advantage.

Summery: Samanyu and Samaria need to take Patent and Trade Secrets Intellectual
Property Right as most food businesses acquire a Trade Secret as there are no registration
problems and costs, plus the Trade Secret is safeguarded by the Courts. However, Trade
Secrets involve internal hassles like NDA and confidentiality with their employees. Trade
Secrets assist companies or businesses in safeguarding their distinctive recipes till they are
not leaked to the public. Although there are lawful outcomes for leaking a Trade Secret in the
market and there is no way the company can stop opponents from stealing its secrets. Utility
patent is also aggo for SamSam. Usually, getting Patents for new recipes is a complicated
process, as it is tough to prove that the recipe is not apparent or not common for an individual
who is a professional chef. But, this doesn’t mean that Patents cannot be filled in the food
business. The applicant can file a Patent application for the process, packaging, new
additives, labelling, etc. Patents can be given for a new working step that is added to the
food-making process, which boosts the food products’ quality.

Refer to Page no: - 162(4.3.1), 163167,167.

• Answer [3] B.

Content: -
➢ Enforcement against violation of Intellectual Property Rights
The term Infringement is a violation of Intellectual Property by an infringer who
exploits such an IP and does not have the authority to do so without the prior consent of
the rightful owners.

The remedies available to a successful claimant in a private civil infringement action include:
• an injunction
• an award of costs
• damages or an account of profits
• delivery up/destruction of infringing items and items used to make them
• tracing orders

1. The injunction: The practical manifestation of this ability to stop infringers is the
prohibitory injunction. A prohibitory injunction is an order, made by a court,
requiring a named individual or individuals to refrain from doing certain defined acts,
which are the exclusive preserve of the IPR owner. In most IPR infringement cases
the prohibitory injunction is by far and away the most important remedy in practice.
2. An award of costs: In IPR cases, there are often two issues in dispute: infringement of
the claimant’s IPRs and their validity. In patent actions, English courts retain the
freedom to apportion the costs between these two issues so that where the patent in
issue was held to be invalid but infringed or alternatively valid but not infringed, the
winner of each issue can have his entitlement to the costs of such issue offset against
his liability to pay his opponent’s costs on the issues on which he himself lost (and for
which he himself therefore cannot recover).
3. Damages or an account of profits: As an alternative to restitution, the IPR owner can
seek the compensatory remedy of an award of damages. The aim of an award of
damages is to compensate the IPR owner for the invasion of his rights: the award of a
monetary sum is intended to put him back, as far as practicable, in the position he
would have been in if there had been no infringement. The usual tortious rules as to
remoteness and causation apply to limit the amount that can be recovered.
4. Delivery up or destruction: There is no automatic entitlement to delivery up or
destruction but once infringement is shown, orders requiring either or both these
 things will usually be made. UK courts are now required to take into account the need
for proportionality between the seriousness of the infringement and the remedy
ordered and the interests of third parties, under Council Directive (EC) 2004/48 (IP
Enforcement Directive). Where the infringing item is a small part of a larger item, the
effect of the IP Enforcement Directive may be that no order for delivery up will be
made.
5. Tracing remedies: An infringer can be ordered to provide details of where he got his
supplies of infringing goods. Failure to provide the information sought in the face of
such an order can amount to a contempt of court.

Summery: One of the biggest challenges faced by the owners of Intellectual Property as
discussed above is due to the Infringement of the IP. There must be a general awareness of
how IP can be safeguarded and one of the most common ways is by registering their content
and with help of various remedies available that can protect the creation of those having
ownership over there IP. The courts in India have power to grant reliefs for violation of
Intellectual Property Right. The Various IP laws prevailing in India have civil and criminal
remedies. Both the civil and criminal remedies available are distinct and not dependant. Most
importantly, they can be served simultaneously.

Refer to Page no: -175 and 176

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