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Precaution for export contract and dispute resolution

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We, Knowledgentia Consultants, attended a session on " Precautions for Export Contracts and Dispute Resolution", organized by Federation of Indian Export Organisation (FIEO) on 26th October 2016 in Ludhiana, Punjab. The session had been planned with an objective to discuss the problems faced by exporters in the current scenario of international trade, terms of commitments mutually agreed between sellers & buyers in export contracts, precautions to be exercised or taken care while entering into conclusive business contracts. During the session, various modes of dispute resolution in case of exports, like Arbitration, Mediation & International or Indian Courts for enforcement of Laws for dispute settlement etc was also discussed in details. Visit: www.knowledgentia.com/ – PowerPoint PPT presentation

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Title: Precaution for export contract and dispute resolution


1
PRECAUTION FOR EXPORT CONTRACTS AND DISPUTE
RESOLUTION
  • Presented by
  • Knowledgentia Consultants
  • Address E-71, L.G.F., Greater Kailash-1
  • New Delhi 110048
  • Tele 91-11-46012100
  • Email info_at_knowledgentia.com
  • Website www.knowledgentia.com

2
INTRODUCTION
  • Export Import business is carried out on the
    basis of a Contract of Sale between buyer and
    seller.
  • The contract should comprise of all the necessary
    terms and conditions.
  • Presence of dispute resolution and jurisdiction
    for dispute resolution in the contract is very
    important.

3
INTRODUCTION
  • Clause for liability and duties.
  • Scope of work for both parties
  • Term and Duration
  • Exit Clause
  • Arbitration clause is important.
  • Indemnification clause.
  • Payment Terms

4
EXPORT/IMPORT CONTRACT
  • For International sale and purchase of
    goods/services
  • The buyer could be a trader, importer, distributor
     or wholesaler that will sell the products to
    another company or merchant. 
  • Seller an exporter, manufacturer or licensee of
    manufacturer
  • Usually, contracts are based only on Proforma
    Invoice, Bill of Lading
  • It is advisable to have a written and legal
    contract/agreement in place.

5
ESSENTIAL ELEMENTS OF AN IMPORT/EXPORT CONTRACT 
  • Products, standards and specifications.
  • Units of measure in both figures and words.
  • Total value. The total contract value in words
    and figures, and in a specific currency and
    bifurcation of taxes ( as applicable).
  • Inspection/Quality Check.

6
  • Delivery terms and schedule.
  • Terms of payment
  • Amount, mode and currency.
  • Documentary requirements

7
  • Clauses for Delay in delivery. 
  • Insurance of goods against loss, damage or
    destruction during transportation.
  • Clause for Intellectual Property Rights to
    goods/services
  • Force Majeure.

8
  • Liability for non-performance of the contract.
  • Applicable law.
  • Jurisdiction
  • Arbitration clause.

9
  • Cargo claims.
  • Terms of breach.
  • Indemnification.
  • Termination.
  • Exit Clause.

10
TERMS ON SALES CONTRACT/ PURCHASE CONTRACT
  • The formal contract consists of the following
    main terms
  • Name of the commodity.
  • Quality of the commodity.
  • Quantity of the Commodity.

11
  • Packaging of the commodity.
  • Price of the commodity.
  • Payment terms and Schedule.

12
  • Insurance.
  • Quality Check/Inspection.
  • Force majure.
  • Exit Clause

13
TERMS ON PRICE METHODS
  • Below are methods generally followed for Price
    Methods
  • FOB- Free on board
  • CFR or CF- Cost and Freight
  • CIF- Cost, Insurance and Freight
  • DAF- Delivered at Frontier

14
FREE ON BOARD (FOB)
  • Free on Board means that the seller fulfills his
    obligation to deliver when the goods have passed
    over the ship's rail at the named port of
    shipment.
  • The buyer has to bear all costs and risks of loss
    of or damage to the goods from that point.
  • FOB terms require the seller to clear the goods
    for export.
  • This term can only be used for sea or inland
    waterway transport.

15
COST AND FREIGHT
  • Cost and Freight means that the seller must pay
    the cost and freight necessary to bring the goods
    to the named port of destination.
  • But the risk of loss or damage to the goods, as
    well as any additional costs due to events
    occurring after the time the goods have been
    delivered onboard the vessel, is transferred
    from the seller to the buyer when the goods pass
    the ship's rail in the port of shipment.
  • The C F term requires the seller to clear the
    goods for export

16
CIF- COST, INSURANCE AND FREIGHT
  • CIF means that the seller has the same
    obligations as under C F.
  • Seller has to procure marine insurance against
    the buyer's risk of loss of or damage to the
    goods during the carriage.
  • The seller contracts and pays the insurance
    premium.

17
DAF- DELIVERED AT FRONTIER
  • DAF means that the seller fulfills his obligation
    to deliver
  • When the goods have been made available
  • Cleared for export, at the named point and place
  • The term is primarily intended to be used when
    goods are to be carried by rail or road, but it
    may be used for any other mode of transport.

18
PAYMENT METHODS
  • IRREVOCABLE L/C(LETTER OF CREDIT)
  • REMITTANCE
  • DOCUMENTARY COLLECTION
  • DOCUMENTS AGAINST ACCEPTANCE (D/A)

19
IRREVOCABLE LETTER OF CREDIT
  • Irrevocable L/C is the one that can not be
    withdrawn or amended by the opening bank without
    the agreement of the beneficiary
  • Secure
  • Internationally Acceptable method

20
IRREVOCABLE LETTER OF CREDIT
  • Irrevocable or not
  • Guidelines for International Trade - Uniform
    Customs and Practice Rules 600 (UCP 600) is the
    latest version with guidelines for comprising
    L/C
  • Bank of buyer and seller are involved in the
    completion of the contract and payment

21
REMITTANCE
  • Mail Transfer (M/T),
  • Telegraphic Transfer (T/T), and
  • Demand Draft (D/D)

22
MAIL TRANSFER
  • Buyer will hand over the payment of the goods to
    the remitting bank
  • Authorizing its branch bank or correspondent bank
    in the country of the beneficiary by mail to make
    the payment to the Seller.
  • Mail transfer is cost effective but takes more
    time.

23
TELEGRAPHIC TRANSFER
  • Buyer will hand over the payment of the goods to
    the remitting bank
  • Buyer authorize their branch bank or
    correspondent bank in the country of the
    beneficiary by telegraphic means to make the
    payment to buyer
  • Expensive but quicker.

24
DEMAND DRAFT
  • Buyer will come to the local bank to buy a
    banker's bill
  • Deliver the Bill to the seller or beneficiary by
    mail
  • When the seller or beneficiary has received it,
    they will redeem it from the designated Bank.
  • Apart from banker's bill, promissory notes or
    cheques can also be used in this way.

25
DOCUMENTARY COLLECTION
  • D/P AT SIGHT
  • Under D/P at sight, the seller might either draw
    or not draw a draft on the buyer.
  • Seller shall hand over the shipping documents
    together with (or without) the draft, and the
    shipping documents and the draft (or without
    draft) will be transferred to the collecting bank
    which will present them to the buyer and ask him
    to make the payment at sight.



26
  • The buyer, upon sight, should then make the
    payment and get the shipping documents.
  • When the collecting bank has finished the
    collection, it should immediately notify the
    remitting bank which will then make the payment
    to the seller.
  • Bank shall make payment to the Seller.

27
D/P AT _ DAYS AFTER SIGHT (DATE)
  • The buyer shall duly accept the documentary draft
    drawn by the seller at _ days sight upon first
    presentation and make payment on its maturity.
  • The shipping documents are to be delivered
    against payment only.

28
DOCUMENTS AGAINST ACCEPTANCE (D/A)
  • Under D/A, the buyer can get the shipping
    documents from the collecting bank after he has
    duly accepted the draft.
  • This is only applicable to time draft.
  • These will greatly convenience the buyer, but it
    means much more risk for the seller, for once he
    has delivered the shipping documents, he will
    have lost his title over the goods.

29
DOCUMENTS AGAINST ACCEPTANCE (D/A)
  • D/A has more risks for the seller, for the buyer
    might refuse to pay after acceptance of the draft
    and taken the delivery of the goods.
  • Certainly the seller might sue the buyer, but as
    often the case, the buyer claims bankruptcy and
    then the seller can do nothing to remedy the
    situation.
  • Buyer fails to remit payment to seller

30
CONTRACT TERMS ON DOCUMENTATION
  • Generally there are five kinds of commonly used
    international trade documents
  • Government Control documents.
  • Commercial Invoice Documents.
  • Banking Documents.
  • Shipping Documents.
  • Insurance Documents.

31
GOVERNMENT CONTROL DOCUMENTS
  • Export Documents.
  • Import License and Foreign Exchange
    Authorization.
  • Export License - Export Documents.
  • Certificate of Origin - Export Document.
  • Inspection Certificate - Export Document.
  • Consular Invoice.
  • Customs Invoice.

32
COMMERCIAL INVOICE
  • Mandatory Information for Invoice
  • Buyer's order number.
  • Invoice number and date.
  • Shipment terms.
  • Names and addresses of the seller and buyer.
  • Country from which the shipment is made.
  • Description of the goods.

33
  • Quantity, weight or measurement of the goods.
  • Unit price
  • Total amount payable, including price of goods,
    freight, insurance and so on.
  • Rebate or similar incentives.
  • Signature of the exporter.

34
BANKING DOCUMENTS
  • Below are some generally used banking documents
    in international trade
  • Documentary Credit D/C.
  • Standby Credit.
  • Collection Instruction.
  • Bill of Exchange (B/E) or Draft.
  • Trust Receipt (T/R).
  • Promissory Note.

35
SHIPPING DOCUMENTS
  • Below are few documents which are generally
    required
  • Shipping Order S/O.
  • Dock Receipt D/R or Mate's Receipt.
  • Bill of Lading (B/L).
  • House Bill of Lading.
  • Sea Waybill.

36
  • vi. Air Waybill (AWB).
  • vii. House Air Waybill (HAWB).
  • viii. Shipping Guarantee.
  • ix. Packing List (sometimes as packing note).

37
INSURANCE DOCUMENTS
  • Below are generally required insurance documents
  • Insurance Policy.
  • Insurance Certificate.
  • Combined Certificate.
  • Open policy or Open cover.

38
ROADBLOCKS FOR IMPORTERS/EXPORTERS
  • Absence of adequate terms/ clauses in contract.
  • Infringement of Intellectual Property Rights
  • Government control.
  • Different laws.
  • Difficulty in payments.



39
  • Customs duty.
  • Lack of information.
  • Economic dependence.
  • International dispute.
  • Language difference.

40
MODES OF DISPUTE RESOLUTION
  • Major modes of dispute resolution are
  • Negotiation
  • Mediation
  • Arbitration
  • Litigation

41
INTELLECTUAL PROPERTY ISSUES IN INTERNATIONAL
TRADE
  • IP Rights are Territorial.
  • Secure Freedom to Operate.
  • Respect Deadlines.

42
INTELLECTUAL PROPERTY ISSUES IN INTERNATIONAL
TRADE
  • Early Disclosure.
  • Working with Partners.
  • Choosing an Appropriate Trademark.

43
WHAT ARE INTELLECTUAL PROPERTY RIGHTS?
  • INTELLECTUAL PROPERTY RIGHTS ARE
  • TRADEMARKS
  • COPYRIGHTS
  • PATENTS
  • DESIGNS.

44
INTELLECTUAL PROPERTY RIGHTS INTERNATIONAL
BUSINESS
  • IP is of relevance to many aspects of
    international trade.
  • Crucially it provides exclusive rights,
  • But these rights have to be pursued locally and
    internationally so as to prevent imitators.

45
TRADE MARKS
  • Trade Marks are distinctive symbols, signs, logos
    that help consumer to distinguish between
    competing goods or services.
  • Trade marks registration enables to maximize
    product differentiation, advertising and
    marketing, thus enhancing the product or services
    in international markets and establishing a
    direct link with the foreign consumers.

46
COPYRIGHT
  • Copyright is the artistic work/logo or
    combination of artistic work with data on
    websites or compilation of data in the form of
    software.
  • Legal copyright registration allows control the
    import and export.
  • Exporting the products outside the country brings
    company into contact with different legal
    environment, the rules that apply there may
    differ.
  • Therefore, it is important to register creative
    work in prospective exporting countries

47
PATENT
  • Patent is an exclusive right granted for an
    innovation, which is a product or a process or
    both that provides a new way of doing something,
    or offers a new technical solution to a problem.
  • Patents provide licensing opportunities with
    companies inside and
  • sometimes even outside a companys field.
    An active patent
  • program generates revenue from the
    licensing of patents which cover
  • technology or business processes.

48
PATENT
  • Possessing a patent help a company to grow by
    capitalising on the market potential of its
    inventions. Small companies use patents to
  • financial backing.
  • Small scale companies that hold patents attract
    overseas investment and develop products for
    exports

49
DESIGN
  • Design is the ornamental or aesthetic aspect of
    an article which must appeal to the eye. The
    design may consist of three-dimensional features,
    such as the shape or surface of an article, or of
    two dimensional features, such as patterns, lines
    or colour.
  • Design contribute to both innovation and brand
    building.
  • Designs helps improve the form of a product, how
    the brand connects emotionally and engages with
    consumer.

50
IP RIGHTS ARE TERRITORIAL
  • All IP rights are only valid in the country or
    region in which they have been granted, except
    Copyright.
  • Therefore, applying for such rights in other
    countries is important if there is an intention
    to go international.

51
EXCEPTIONS
  • Copyright is automatically available to all
    member countries through the provisions of the
    Berne Convention,
  • Well known marks have automatic protection,
  • Trade secrets are by their nature confidential.

52
IP RIGHTS ABROAD
  • Export Import the owner of IPR should seek
    protection from the jurisdiction wherein it is
    proposing to commence business
  • Protection through application of Trademark,
    Patent, License, Assignment as applicable and
    agreed between both parties
  • IPR can be applied for registration either
    through National route or through Regional Route
  • Once applied, the seller can claim royalty in
    lieu of rights to sell the product/service in
    that jurisdiction

53
IP RIGHTS ABROAD
  • National route
  • Register for the relevant IP in each
    country/territory.
  • Obtain IP Rights Internationally
  • Regional Route Below are few International
    Organization which provide IP rights for their
    jurisdictions or conglomerate of areas
  • Benelux Office for IP (TM and Designs)
  • ii. African Regional Industrial Property
    Office (ARIPO)

54
  • iii. Eurasian Patent Office
  • iv. European Patent Office
  • v. Office for the Harmonization of the Internal
    Market (TM and Designs)
  • vi. Organisation Africaine de la Propriété
    Intellectuelle (OAPI)
  • vii. Patent Office of the Cooperation Council for
    the Arab States of the Gulf
  • In INDIA INTELLECTUAL PROPERTY RIGHTS are
    protected by CONTROLLER GENERAL OF PATENTS,
    DESIGNS TRADE MARKS.

55
INTERNATIONAL ROUTE
  • World Intellectual Property Organization (WIPO)
    Administers the conventions and systems for the
    international registration of marks, designs and
    patents in conformity with the requisite
    standards and parameters.
  • Through Madrid and Hague International
    application is valid in the designated countries
    unless rejected within a specified time.
  • PCT International application subject to
    international phase (international search and
    patentability report and a preliminary
    examination report, if required) followed by the
    national phase. Here the designated countries
    decide on patentability.

56
FREEDOM TO OPERATE (FTO)
  • Analyzing FTO is to evaluate whether you are in
    any way infringing the patents, designs or
    trademarks of others in the particular
    jurisdiction.
  • Such a evaluation is usually done by conducting a
    search in patent, trademark and design databases
    for patent applications, granted patents,
    registered trademarks or designs.

57
FTO - PATENT
  • Even if there is a potentially conflicting patent
    that has been granted in the territory in
    question.
  • It may have expired or expiring soon.
  • Its claims may not cover the elements of
    interest.
  • If the patent still remains valid and applicable.
  • It could still be invalidated by finding
    applicable prior art.
  • A license could be obtained or
  • Invent an alternative.

58
FTO - TRADEMARK
  • Same issues nationally as for international
  • Search for similar trade name or domain name that
    may lead to a future dispute.
  • Analyse the competitors and their brands/mark
    whether registered or not.
  • Then create, innovate and coin a mark/logo/tag
    line for protection.

59
HOW TO DEAL THE CONFLICT?
  • If the search produces a prior existing patent,
    trademark or design in the market of interest
    then clearly it cannot be used as is
  • Options available are to change the trademark,
    design around the patent or design
  • Offer to buy or license that right or
  • Challenge its validity if its not novel or its
    obvious.

60
RESPECT DEADLINES
  • Priority Period.
  • Patents 12 months Designs 6 months
  • Once an application for a patent or design right
    has been made domestically (priority date) an
    international application has to be made within
    the priority period .
  • Priority date can be claimed from domestic
    priority.
  • Loss of novelty if filed beyond the stipulated
    period

61
EARLY DISCLOSURE
  • Novelty is pre requisite for claiming protection.
  • Disclosure only through Non-disclosure Agreement.
  • If not, the novelty could be lost and an
    application for registration be rejected.
  • Essential for Innovative processes and products
    for both Designs and Patents to potential
    partners before protection has been filed.

62
WORKING WITH PARTNERS IPR
  • Ownership of IP.
  • Assignments/licenses for ownership.
  • Risk of unauthorized use or disclosure of trade
    secrets by partner.
  • Risk that partner will use trade secrets of
    others and expose you to litigation. Insist on
    indemnification.
  • Quality of product to be maintained.
  • Sustain brand image.
  • Trade marks to be registered in name of original
    owner only.
  • If registered in the partners name in the country
    could create conflicts once the relationship
    ends.

63
CHOOSING AN APPROPRIATE TRADEMARK
  • Mark should be innovative, creative
  • Not deceptive
  • Not descriptive or generic
  • Unique and not obvious
  • Interesting connotations and their translated
    meanings should be analyses in the territory for
    interest
  • FEW EXAMPLES
  • Mitsubishi was dismayed to find that PAJERO
    means 'Wanker' in Spanish. Ford NOVA means
    No Go in Spanish. Whereas Coca Cola was
    successful in finding a trademark in Chinese to
    say Happiness In The Mouth

64
DISPUTE RESOLUTION
65
NEGOTIATION
  • Basic means of settling differences.
  • It is back-and-forth communication between the
    parties.
  • Goal of trying to find a solution.
  • You may negotiate directly.
  • You may hire an attorney to negotiate on your
    behalf.
  • No specific procedures to follow.
  • It works best if all parties are positive and
    intend to settle
  • the matter.

66
MEDIATION
  • Mediation is a voluntary process.
  • An impartial person (the mediator) helps with
    communication and promotes reconciliation.
  • Mediator manages the process and helps facilitate
    negotiation.
  • Mediator does not make a decision nor force an
    agreement.
  • Parties directly participate and are responsible
    for negotiating their own settlement or agreement.

67
ARBITRATION
  • Arbitration is the submission of a disputed
    matter to an impartial person (the arbitrator)
    for decision.
  • An out-of-court method for resolving a dispute.
  • Arbitrator controls the process, will listen to
    both sides and make a decision.
  • Appeal rights are limited.

68
LITIGATION
  • Litigation is the use of the courts and civil
    justice system to resolve legal controversies.
  • Used to compel opposing party to participate in
    the solution.
  • Specific rules of procedure, discovery and
    presentation of evidence must be followed.
  • A formal judicial proceeding allowing full
    examination and determination of all the issues
    between the parties.
  • Decision can conclude the litigation process and
    be enforceable.
  • Appeal is available.

69
ARBITRATION V/S CIVIL LAW
  • Arbitration is the alternative dispute resolution
    mechanism
  • Saves time and cost as incurred in litigation
  • Parties are bound by Award of an arbitrator
  • Final decision of Arbitrator

70
ADVANTAGES OF ARBITRATION
  • Advantages of arbitration
  • (i) Arbitration proceedings are private and
    confidential.
  • (ii) Parties can choose the arbitrator.
  • (iii) Parties can choose the language of the
    arbitration and its venue.
  • (iv) Arbitrations can be less formal than
    court proceedings.
  • (v) Arbitration awards are final, binding
    and are enforceable through the
  • courts.

71
  • (vi) Avoids hostility.
  • (vii) Usually cheaper than litigation.
  • (viii) Faster than litigation.
  • (ix) Flexible.
  • (x) Simplified rules of evidence and procedure.

72
LAW FOR ENFORCEMENT OF FOREIGN AWARDS
  • Member country signatory of International
    Conventions. 
  • Members to bring legislation for enforcement.
  • India has accordingly enacted Foreign Awards (
    Recognition and Enforcement) Act, 1961.
  • Person interested in the award can pray the
    court, having jurisdiction.
  • Court pronounces the judgment according to the
    award.
  • No appeal can lie except when the judgment is in
    excess or not in accordance with the award.

73
REAL TIME CASE LAWS
  • CHAMBER OF ARBITRATION, MILAN 10.10.2014
  • FACTS Issue of breach of terms of Technology
    Transfer Agreement entered in between the parties
    way back in 2011 between an Italian and German
    entity. Claimant terminated the contract alleging
    the non timely delivery of goods and claimed
    refund of payment made for procurement of
    materials.
  • ARGUMENTS According to Claimant, Respondent was
    unable to package a given quantity of the agreed
    product within the stipulated time as per the
    order.
  • Commercialization was to be launched by a client,
    who cancelled the entire order and the claimant
    suffered loss of client, income as well as
    reputation.
  • However, the respondent stated that no deadline
    was mentioned in the contract and also respondent
    made all efforts to package the product timely.
  • Ref Claimant (Italian company) v. Respondent
    (German company) Chamber of Arbitration of Milan
    Award No. 7813, rendered on 10 October 2014.

74
  • JUDGMENT OF THE COURT
  • The Sole Arbitrator found that Respondent
    behavior was in compliance with the standard good
    faith acceptable in the circumstances and taking
    into account both parties contractual
    obligations.
  • In fact, on the basis of the evidence presented
    by the parties and of the experts report, the
    Sole Arbitrator deemed that while Respondent
    proved to have made its best efforts to try and
    package the goods, Claimant did not demonstrate
    that it actually performed the activities which
    were necessary to put Respondent in the condition
    to package in case of urgency, not only pursuant
    to the agreement but also according to the
    standard practices of the field.
  • Thus, the award was in favour of the Respondent
    German Company.

75
Playboy Enterprises v. Bharat Malik Another,
Delhi High Court 2001 PTC (21) 328
  • INFRINGEMENT OF FOREIGN TRADEMARK
  • FACTS
  • Playboy Enterprises Incorporation has been the
    publisher of the widely known magazine PLAYBOY
    filed for restraining an Indian publisher Mr.
    Bharat Malick, who launched PLAYWAY.

76
  • Plaintiff contended that the adoption of the word
    'PLAY' by the defendant was ill motivated and
    illegal. And that the word was phonetically
    similar to the mark PLAYBOY.
  • Hence, there was a clear case of infringement of
    the registered trademark of the plaintiff with
    the intention of selling the defendants magazine
    using the goodwill and reputation of the
    plaintiff.
  • Court held that long and continuous user by
    Plaintiff of the mark PLAYBOY has given it a
    global reputation of being well known in that
    content. Thus, use of mark PLAYWAY for similar
    content amounts to infringement and passing off.
  • Defendants were restrained from printing and
    publishing the magazine under the name PLAYWAY.

77
HORLICKS LTD. ORS. V. KARTICK SADHUKAN 2002
(25) PTC 126 Del
  • FACTS
  • HORLICKS Ltd. is a foreign company engaged in
    manufacturing of wide range of food products.
  • KARTICK CONFECTIONERY started manufacturing a
    similar look-alike product, namely, toffees under
    the trademark HORLIKS infringing the trademark
    rights enjoyed by 'HORLICKS.
  • SUIT HORLICKS filed for a suit seeking to
    permanently restrain
  • KARTICK CONFECTIONERY from infringing the
    trademark
  • HORLICKS and also its copyrights which it
    enjoyed over the
  • product.

78
JUDGEMENT
  • The court ruled that use of the label and
    trademark HORLIKS by defendants in respect of
    toffees is very likely to cause confusion among
    the people. It would thereby lead to deception
    and thus it restrained Kartick confectionary from
    use of the mark HORLIKS or under any other name
    that is similar in expression to Hs trademark
    HORLICKS.

79
ICC DEVELOPMENT INTERNATIONAL V. ARVEE
ENTERPRISES ANOTHER2003 PTC (26) 228
  • FACTS
  • ICC Development (International) Ltd., exclusive
    owner of rights pertaining to logo/word/ for
    World Cup.
  • Arvee Enterprises was an authorized dealer of
    Philips India Ltd. Launched a Promotional
    campaign with slogan - "Philips Diwali Manao
    World Cup Jao" and "Buy a Philips Audio System
    win a ticket to the World Cup". They even
    inserted a pictorial representation of a ticket
    with an imaginative seat and gate number saying
    "Cricket World Cup 2003.

80
  • SUIT
  • ICC approached the Delhi High Court for restrain
    against the Defendant on the averment of ambush
    marketing.
  • JUDGMENT
  • Court dismissed the suit of ICC and asserted that
    the practice of Arvee was neither it was an
    Unfair trade practice nor misuse of brand of
    World Cup.
  • Court upheld that World Cup is a sporting event
    and not a trademark upon which exclusive rights
    would vest with Plaintiffs as claimed.

81
WIPRO CYPRUS PRIVATE LIMITED V. ZEETEL
ELECTRONICS 2010 (44) PTC 307 (MAD)
  • FACTS
  • Wipro Cyprus Private Ltd acquired the trademark
    Yardley and all its variants thereupon from
    Lornamaed Group Ltd including its Indian
    registrations.
  • Zeetel Electronics attempted to import talcum
    powder and body sprays having the same trademark
    Yardley from
  • Singapore.
  • SUIT
  • Wipro filed for a suit of permanent injunction
  • against Zeetel.

82
JUDGEMENT
  • Madras High Court restrained Zeetel from
    importing the goods in India thereby it upheld
    the exclusive right of Wipro on acquisition of
    brands for India.
  • Thus, on the basis of license and sale of
    registered Trademarks competitor was curbed from
    doing business of goods under that trademark.

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NOKIA AND SAMSUNGFebruary 1, 2016
  • The convoluted litigation between Nokia and
    Samsung concluded with an arbitral award which
    settled the patent disputes between both the
    corporates. The award also assessed the
    compensation for extension of Patent license for
    a few years.
  • Multifarious and complicated issues of cross
    patents, technology its scope and ambit can be
    best adjudicated by the mode of Arbitration as
    strict laws of civil procedure and evidence would
    only impede the decision and not enhance its
    redressal

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TESSERA TECHNOLOGIES, INC. VS. AMKOR
TECHNOLOGY, INC.
  • The parties entered into a license agreement in
    1996, and agreed that all disputes would be
    submitted to final and binding arbitration before
    the ICC.
  • The tribunal convened by the ICC found that Amkor
    had intentionally and materially breached the
    parties' license agreement, and that, as a
    result, Tessera, Inc. properly terminated the
    license agreement in 2011.
  • The total award of approximately 145 million

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MITSUBISHI MOTORS CORP. VS. SOLER
CHRYSLER-PLYMOUTH, INC. 473 U.S. 614 (1985)
  • Petitioner brought an action in a US District
    Court seeking an order compelling the parties to
    arbitration in pursuance of the sales agreement.
  • Respondent alleged that the dispute involved
    antitrust claims (division of markets resulting
    in restraint of trade), which are not arbitrable.
  • The court held that International Arbitration can
    settle all disputes.

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CONCLUSION
  • Export/Import Contract should always be entered
    into
  • Incorporation of all suitable terms and
    conditions in the Contract
  • Arbitration clause plays an important role for
    dispute settlement.
  • Terms of breach, indemnification and insurance
    plays are of paramount importance
  • Payment method should be secure, suitable and
    acceptable to both
  • Exporter/Importer should ensure that the relevant
    Intellectual property rights are secured both in
    domestic as well as international arena
  • In case of conflict, do not delay, initiate
    action quickly.

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