8f5adConsumer Protection Act 1986 M & S

8/8/2019 8f5adConsumer Protection Act 1986 M & S

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Consumer Protection Act, 1986

(module-VI)

Need for Consumer Protection

Meaning of Consumer

Different redressal Forums for Consumers,

Rights of Consumers,

Unfair Trade Practices, and Procedure for Filing Complaints


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Consumer Protection Act, 1986

EXTENT AND COVERAGE OF CONSUMER PROTECTION ACT

The Act applies to all goods and services unless specificallyexempted by the Central Government.

It covers all the sectors whether private, public or cooperative.

The provisions of the Act are compensatory in nature.

The provisions of this Act are in addition to and not in derogation ofthe provisions of any other law for the time being in force.

The Act envisages establishment of Consumer Protection Councilsat the Central and State levels, whose main objects will be topromote and protect the rights of the consumers.


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Need for Consumer Protection

The consumer protection Act, 1986, provides for thebetter protection of consumers. Unlike existing lawswhich are punitive or preventive in nature, the

provisions of this Act are compensatory in nature.The Act is intended to provide simple, speedy andinexpensive redressal to the consumers' grievances,award relief and compensation wherever appropriateto the consumer. The Act has been amended in 1993

both to extend its coverage and scope and toenhance the powers of the redressal machinery.


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Meaning of Consumer

WHO IS CONSUMER?

All of us are consumers of goods and services. For the purpose of the

Consumer Protection Act, the word "Consumer" has been definedseparately for "goods" and "services".

(A) For the purpose of "goods", a consumer means a person belonging toth

e following categories:

One who buys or agrees to buy any goods for a consideration which hasbeen paid or promised or partly paid and partly promised or under anysystem of deferred payment;

It includes any user of such goods other than the person who actualy buysgoods and such use is made with the approval of the purchaser.

Note :A person is not a consumer if he purchases goods for commercial orresale purposes. However, the word "commercial" does not include use byconsumer of goods bought and used by him exclusively for the purpose ofearning his livelihood, by means of self employment.

(B) For the purpose of "services", a "consumer" means a person

belonging to the following categories: One who hires or avails of any service or services for a consideration which

has been paid or promised or partly paid and partly promised or under anysystem of deferred payment.

It includes any beneficiary of such service other than the one who actuallyhires or avails of the service for consideration and such services are availedwith the approval of such person.


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RIGHTS ENJOYED BY CONSUMER

1. Right to be protected against the marketing of goods and service that is hazardous

to life and property.

2. Right to be informed about the quality, quantity, potency, purity, standard and price

of goods or services so as to protect the consumer against unfair trade practices.

3. Right to choice wherever possible , access to a variety of goods and services at

competitive prices.

4. Right to be heard and to be assured that consumers' interests will receive due

consideration at appropriate forums;

5. Right to seek redressal against unfair trade practices unscrupulous exploitation of

consumers.

6. Right to consumer education.

7. Right to clean and healthy environment.


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Different redressal Forums for Consumers

The Act envisages a three- tier quasi-judicial machinery at the National, State and Districtlevels.

National Consumer Disputes Redressal Commission - known as "NationalCommission" deals with complaints involving costs and compensation higher than Rs.One Crore.

State Consumer Disputes Redressal Commissions - known as "StateCommission, deals with complaints involving costs and compensation higher than Rs.Twenty Lakhs and less than Rs. One Crore.

District Consumer Disputes Redressal Forums - known as "District Forum, dealswith complaints involving costs and compensation less than Rs. Twenty Lakhs.

JURISDICTION

. If the cost of goods or services and compensation asked for is up to rupees twentylakh ,then the complaint can be filed in the District Forum which has been notified bythe State Governmentfor the district where the cause of action has arisen or wherethe opposite party resides. A complaint can also be filed at a place where the branchoffice of the opposite party is located.

If the cost of goods or services and compensation asked for is more than rupeestwenty lakh , but less than rupees one crore then the complaint can be filed beforethe State Commission notified by the State Government or Union TerritoryConcerned.

If the cost of goods or services and compensation asked for exceed rupees one crorethen the complaint can be filed before the National Commission at New Delhi


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RELIEF AVAILABLE TO CONSUMER

Depending on the facts and circumstances, the Redressal Forums may giveorder for one or more of the following relief.

Removal of defects from the goods,

Replacement of the goods;

Refund of the price paid;

Award of compensation for the loss or injury suffered;

Removal of defects or deficiencies in the services; Discontinuance of unfair trade practices or restrictive trade practices ordirection not

to repeat them;

Withdrawal of the hazardous goods from being offered to sale; or

Award for adequate costs to parties

LIMITATION The District Forum, the State Commission or the National Commission shall

not admit a complaint unless it is filed within two years from the date onwhich cause of action has arisen


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Unfair Trade Practices

Unfair trade practice" the detailed definition is given in

the Consumer Protection Act, 1986 as amended by theConsumer Protection (Amendment) Act. 1993. It meansa trade practice which, for the purpose of promoting thesale, use or supply of any goods or for the provision ofany service, adopts any unfair method or unfair or

deceptive practice including any of the followingpractices, namely :-

(a) false or misleading representation,

(b) bargain price

(c) offering of gifts, prize, contest etc.

(d) non compliance of product safety standard.

(e) hoarding or destruction of goods.


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Procedure for Filing Complaints

Procedures for filing complaints and seeking redressal are simple. There isno fee for filing a complaint before the District Forum, the State Commission

or the National Commission. ( A stamp paper is also not required). Three tofive copies of the complaint on plain paper are required to be submitted bythe complainant or his authorized agent in person or could be sent by postto the appropriate Forum / Commission.

A complaint should contain the following information:-

(a) The name, description and the address of the complainant.

(b) The name , description and address of the opposite party or parties, asthe case may be, as far as they can be ascertained;

(c) The facts relating to complaint and when and where it arose;

(d) Documents, if any, in support of the allegations contained in thecomplaint.

(e) The relief which the complainant is seeking.

The complaint should be signed by the complainant or his authorizedagent.

The complaint is to be filed within two years from the date on whichcause of action has arisen.


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Intellectual Property Rights

Intellectual Property Rights is defined as information with commercial value.

Intellectual property emerges from human creativity, innovation and

engagement . It takes different forms, like ideas, inventions literary works,

designs, music, films, computer software etc.

Protection of Intellectual Property: The State sets up the mechanism

wherein it asks the inventors to get their inventions registered in their

name. The inventor is free to use the idea ,sell it off or lease the right to use

the idea. Thus the State has created the property in intellectual labour of

individuals. Property rights create ownership. Ownership is subject toregulations, control and curtailment for the larger social good. Thus the law

dealing with intellectual property, on the one hand creates a right in the

intellectual property. On the other hand, the law, in the larger interest of the

society, regulates and curtails the ownership of this property.


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Different Laws on Intellectual

Property1. The Patents Act, 1970

2. Indian Copyright Act, 1957

3. Trade Marks Act, 19994. The Designs Act, 1999


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The Patents Act, 1970

Indian Patent Act provides patent protection in India. Inventions are thesubject matter of patents.

Invention is defined as a new product or process involving an inventive stepand capable of industrial application

Salient features of Indian Patent Law:

The Patent law of India has the following salient features that decide whether apatent will be granted or not:

(a) The object: The object of patent law is to encourage scientific research,new technology and industrial progress. The price of the grant of themonopoly is the disclosure of the invention at the Patent Office, which,after the expiry of the fixed period of the monopoly, passes into thepublic domain.

(b) Inventive step: The fundamental principle of Patent law is that a patent is

granted only for an invention which must have novelty and utility. It isessential for the validity of a patent that it must be the inventor's owndiscovery as opposed to mere verification of what was, alreadyknown before the date of the patent.


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Rights of a Patentee

1. The Patentee can sell the whole or part of this property.

2. He can also grant license to others to use the patented property.

3. He can also assign such property to others.

Period of Patent:

1. In respect of patents related to drugs and food, the term is five years2. In respect of all others the term is 14 years from the date of patent. A

patent is kept alive only by the renewal fee from time to time.

Remedy for infringement of Patent:

Any action for infringement must be instituted by way of suit in any District

Court or High Court which has the jurisdiction.1. Interlocutory injunction

2. Damages

3. Accounts of profit


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COPYRIGHT ACT, 1957

The object of Copyright Law is to encourage authors,composers, artists and designers to create originalworks by rewarding them with exclusive right for alimited period to exploit the work for monetary gains. It

protects the writer or the author of the original workfrom unauthorised reproduction. Copyright subsistsonly in material form on which ideas are expressed.

Works protected by copyright are:

Original, Literary, dramatic, musical and artistic works;

Cinematographic film; and

Records.


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Contd-

Literary work- includes novels, books, articles, innewspapers, magazines and journals, lyrics for song,computer programmes. etc.

Dramatic work- includes recitation, acting out of anyliterary work, choreographic works and dumb shows.

Musical work

:

Any original musical work and aparticular combination of melody and harmony comeunder this category.

Artistic Work: includes paintings, sculptures,photographs , drawing of a diagram, chart or map.

Film: includes motion pictures, television shows,and thetelevision recording of events.

Record: recording of sound.


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HOW TOOBTAIN COPYRIGHT

In order to secure copyright protection what is required is that the author must havebestowed upon the work sufficient judgment, skill and labor or capital. In order toqualify for copyrights the works apart from being original, should satisfy thefollowing conditions

1. The work is first published in India.

2. Where the work is first published outside India the author, at the date of publicationmust be a citizen of India. If the publication was made after the authors death the

author must have been at the time of his death a citizen of India.3. In case of unpublished work the author is at the date of making the work a citizen ofIndia or domiciled in India.

4. In case of the architectural work of art, the work is located in India.

HOW TOOBTAIN COPYRIGHT

The steps for Registration:

1. Application in triplicate with prescribed fees.2. Applicant to serve notice of his application to every person who has any interest in

the subject matter.

3. If the Registrar receives any objection he may after holding such inquiry as hedeems fit, enter such particulars of work in the register of copyright, which heconsiders proper.

4. Registrar then sends copies of the entries made in the register to the partiesconcerned


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TERMOF COPYRIGHT

The term of copyright varies according to the nature of the work and whetherthe author is a natural person or a legal person e.g. a Corporation,Government Institution, etc.

In the case of literary, dramatic, musical or artistic work (other than aphotograph) when published during the lifetime of the author, copyrightsubsists during the lifetime of the author plus fifty years.

Where the work is of joint authorship the fifty years period will start after thedeath of the author who dies last.

In the case of posthumous publications the term will be fifty years from theyear of publication.

The period of copyright for a photograph is fifty years from the year of itspublication.

For cinematography film and record also the term is fifty years of publication.

Where the first owner of copyright is the government or a public undertakingthe term of copyright is fifty years from the year of publication.

Copyright works of International Organization also have a term of fifty yearsfrom the year of publication.


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WHO IS THE FIRST OWNEROF

COPYRIGHT

The author of the work is the first owner.

In case the author is employed by newspaper, magazine etc under acontract of service, the proprietor will be the first owner in the absence ofan agreement to the contrary in the case of a literary, dramatic or artistic

work. Where a photograph is taken, or a painting or portrait drawn for a valuable

consideration at the instance of person, such person is the first owner.

Where any address or speech is delivered in public, the person delivering isthe first owner and where it is delivered on behalf of another person suchother person is the first owner.

In case of Government work, Government shall be the first owner. In case of work made or published by or under any public undertaking, it

shall be the first owner.


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INFRINGEMENT of COPYRIGHT

Copyright in a work is deemed to be infringed: When any person without a license from the owner of the copyright, or

the Registrar of Copyright or in contravention of the conditions of alicense, does anything the exclusive right to do which belongs to thecopyright owner

In general it is the commercial exploitation of the work in any form by aperson without authority that constitutes infringement.

REMEDIES

There are three kinds of remedies against infringement of copyright, namely:

1. Civil remedies Injunction damages or account of profit, delivery ofinfringing copy and damages for conversion.

2. Criminal remedies Imprisonment of the accused or imposition of fine orboth. Seizure of infringing copies.

3. Administrative remedies Administrative remedies consist of moving theRegistrar of copyrights to ban the import of infringing copies into Indiawhen the infringement is by way of such importation and the delivery ofthe confiscated infringing copies to the owner of the copyright andseeking the delivery.

LIMITATION The period of limitation for filing the suit is three years from

the date of infringement.


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TRADEMARK ACT,1999

WHAT IS A TRADEMARK?

A trademark is a mark used in relation to goods for the purpose of indicatinga connection between the goods and some person having the right asproprietor to use the mark

It is a visual symbol in the form of a word, device or a label applied toarticles of commerce with a view to indicate to the purchasing public that

they are goods manufactured or otherwise dealt in by a particular person ora particular organisation as distinguished from similar goods manufacturedor dealt in by others

FUNCTIONS OF A TRADEMARK

A trademark serves the purpose of identifying the source or the origin of goods.Trademark performs the following four functions.

It identifies the product and its origin.

It proposes to guarantee its quality.

It advertises the product. The trademark represents the product.

It creates an image of the product in the minds of the public particularly theconsumers or the prospective consumers of such goods.


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REGISTRATIONWHO CAN APPLY

Any person who claims to be a proprietor of a trademark and is desirous of registration of the mark can apply. The application may be made in the name of anindividual, partners of a firm, a Corporation, any Government Department, a trustor joint applicants.

APPLICATION

After completing all specifications on the prescribed application form, anapplication shall be filed in the office of the trademark Registrar "within whose

territorial limits the principle place of business in India of the applicant or in thecase of the joint applicants the principal place of business in India of the applicantwhose name is the first mentioned in the application, as having the place of business is situated.

Every application for registration of a trademark shall contain a representation ofthe mark in the place provided in the form for the purpose. Ten additionalrepresentations of the mark have to be supplied with the application.

U

pon submission of an application for registration of a trademark, there can be fouroutcomes:

a. The application is accepted as it is.

b. The application is accepted subject to certain amendment.

c. The application is accepted but latter it is found to have been accepted in error.

d. The application stands rejected.

The application is thus either accepted completely or is accepted subject to

amendments.


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Contd-

ADVERTISEMENT

Soon after acceptance of the application, the application isadvertised in the Trademarks Journal.

Any person may, within three months from the date of theadvertisement or readvertisement of the application for registration or within such further period not exceeding onemonth, give notice in writing to the Registrar of opposition tothe registration. If such an opposition does not arise then themark is deemed to be registered.

TIME PERIOD

The registration of a trademark shall be for a period of sevenyears, but it may be renewed from time to time


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INFRINGEMENT OF TRADEMARK

Infringement of a trademark occurs if a person other than the registeredproprietor in the course of trade, in relation to the same goods or servicesfor which the mark is registered, uses the same mark or deceptively similarmark.

REMEDIES

The proprietor of a trademark has a right to file a suit for infringement of

his right District Court having jurisdiction or in a High Court havingoriginal jurisdiction to entertain such suits and obtain

Injunction- an injunction restrains the defendant from using the offendingmark pending the trial of the suit or until further orders.

Damages- The loss must be the natural and direct consequence of thedefendants acts. The object of damages is to compensate for loss or injury.

Accounts of profits- Where a plaintiff claims the profits made by the unauthorised use of his trademark, it is important to ascertain to what extenthe trademark was used, in order to determine what proportion of the netprofits realised by the infringer was attributable to its use.

LIMITATION

The period of limitation for filing the suit is three years from the date ofinfringement.