At Indian Case laws, we always endeavor to bring something new to our readers. In the past, we have been restricting ourselves from expressing our views on the practice of law in India, status of legal education, working of the Courts and various adjudicatory forums, law firm work culture, emerging trends and various other issues that could be of further interest to our readers. Well, they say that change is the only thing constant and keeping in tandem with this, we bring you LEXpressions.
LEXpressions for us is sharing our personal thoughts, ideas and experiences along with experiences and views of several other professionals and legal luminaries on various legal issues and allied topics that could be helpful to our fellow readers, law students and budding lawyers. In our first post on LEXpressions, we are sharing the experience of our Co-founder, Ankit Rastogi at judging the preliminary rounds of 14th Edition of Amity National Moot Court Competition, 2015 held at Amity Law School, Delhi, F-1 Block, Amity University Campus, Sector 125, Noida on February 21, 2015 in his own words.
It was 20th February of this year and the next day I had to judge the preliminary round of the moot. As expected, my name was the last minute entry to the final list of judges who were going to judge the moot. Well, I was very excited as it was my first chance to be a judge in a moot court competition. More than judging a moot for the first time, I was excited for the fact that the moot problem was on Intellectual Property Rights, essentially on Trade Marks law, with a heavy dosage of Competition law aspects ingrained in it.
The organizing committee and the students participating in the moot were all geared up for the first round of the competition. Needless to say, the competition was organized quite well. We had two rounds to judge, one in the pre-lunch session and the other in the post-lunch session.
As per the moot problem, the arguments were to be made before the Supreme Court of India. I was glad that at least for a day, I had the opportunity to pretend to act as a Supreme Court Judge, which is definitely a great honour in itself if you are in this profession. As the problem was on trade marks, I had done my own ground research on the issues involved in the moot problem and was all ears to hear the arguments from the both sides of the participants.
The moot problem dealt with multiple issues (as always). As Supreme Court, in its normal practice comprises of a bench of two judges, I had one fellow judge to accompany me. Before the arguments kicked off, we decided that I would be handling the issues of infringement of trade mark and passing off and my fellow judge would be dealing with the aspects of Competition law.
One of the main issues in this moot problem was pertaining to Section 35 of the Trade Marks Act, 1999 (“Act”).
Section 35 of the Trade Marks Act, 1999 is reproduced herein below for quick reference:
“35. Saving for use of name, address or description of goods or services.—Nothing in this Act shall entitle the proprietor or a registered user of a registered trade mark to interfere with any bona fide use by a person of his own name or that of his place of business, or of the name, or of the name of the place of business, of any of his predecessors in business, or the use by any person of any bona fide description of the character or quality of his goods or services.”
As per Section 35 of the Act, a Defendant is entitled to use his own name in a bona fide manner as the trade mark or trade name. The key issue was, whether or not the Defendant was using his own name in a bona fide manner.
It is noteworthy to mention that in a recent case, Precious Jewels & Anr. Vs. Varun Gems decided on 14th August, 2014, the Supreme Court had come up with a ruling on Section 35 of the Trade Marks Act, 1999. However, much to my surprise, none of the participants had the citation of this case in their pleadings. In this case, the Supreme Court had allowed the Defendant to use his own name in a bona fide manner. I was also impressed to know that when I asked the participants to distinguish the Precious Jewels Case (supra) from the case at hand, they were able to apply their mind and answer my questions pretty well.
The moot problem also dealt with the issue of purchasing keywords on online services such as, Google Adwords and resultant infringement and passing off issues when search engines like, Google put the results of the entities purchasing those keywords over and above the other entities. The case was directly covered by the Madras High Court judgment in Consim Info Pvt. Ltd. v. Google India Pvt. Ltd. & Ors. (Read our summary of this case here). However, to my disappointment, many of the participants were not aware of any of these leading judgments on the issue. Those who were aware of the case, though cited the judgment to support their contention, were completely oblivious of the Division Bench judgment on the same. Evidently, the teams had not done a thorough research and merely relied on the judgment of single judge bench.
As far as speakers are concerned, it appeared that they had not planned their time well. Out of the four teams I had the opportunity to judge, I found the first team in the second round the best. They had good argumentative and persuasive skills. They knew their subject well and were able to advance arguments with a lot of composure and conviction. I hope they fared well in the later rounds of the competition as well.
As an IP lawyer, I have been practicing for almost three and a half years and from my naïve perspective of the adjudicatory system, it always appeared that the job of a judge is fairly easier than that of a lawyer. However, trying my stint at judging a moot court competition and acting as a mock Supreme Court Judge made me realize that the task of a judge is very mind-numbing. They have to be very meticulous in their approach while being accommodating enough to hear both sides of the arguments. As a lawyer, making mistakes is simply another learning curve in your career to a higher echelon of advocacy. However, as a judge making mistakes can wreak havoc and lead to miscarriage of justice. They have to be at the top of their game to decide the matters in their proper sense.
Coming to the parameters of the competition, we were required to judge the teams on various scales, including but not limited to persuasiveness, logical thinking, research, time management etc. However, I found it very difficult to quantify such expected skills of a lawyer on these parameters in terms of marks. However, I believe that scores are the only way you can judge these competitions.
As a law student, though I never participated in a moot court competition, now when I reflect back I must say that participating in moot court competitions at least gives you a taste and flavor of this profession. Even though, participation itself cannot make you learn the practical aspects of litigation, it can go a long way to hone your research skills, argumentative skills, and help you open up as a lawyer. It can also help you appreciate the significance of how much to speak and when to stop. Advocacy is not what we usually see in the movies and daily soaps. It is the art of reading into the mind of a judge and understanding what they expect to hear. The entire brigade of lawyers crave for time and attention of their judge and when they actually get it, the art is to use that to pitch your case in the most effective and minimum words. I realized, unlike moot courts, in a real court situation you do not have luxury of time and words. We all realize it only when we are out of law schools.
As a piece of advice to aspiring mooters, I would like to suggest that the less you are excited about making an argument and proving your point in many words, the better are your chances to impress the judge with your pith and precise arguments. A Judge never looks for the better speaker, but for a person who is well versed with the relevant facts of the case and has come well prepared with his/her research and arguments so as to answer all of their questions.
Another piece of advice, if a Judge has made certain assumptions on the basis of the facts of the moot problem, never try to dissuade him/her from relying on the same as it can be counterproductive. There is a reason why those assumptions are made. Most of the time, they would be even able to give their reasoning, but a moot court setting is not the right place to argue on those reasoning. Obviously, telling a judge that such assumptions cannot be made is a strict No, as you may unnecessarily risk your score and worsen your chances of impressing the judge.
It is understood that even as a participant, you are expected to dress smart in the usual lawyer’s outfit. Even though, it may not earn you any brownie points before the judge, it always gives you an edge with your overall presentations when you look well-groomed.
One important piece of advice to the forgetful participants, they often forget the status of the parties before the Court and mix up with the terms defendant, plaintiff, appellant and respondent.
To sum up, it was actually quite an intellectually engaging experience for me to hear arguments on my favorite law subject as a mock judge. It also taught me a lot of other aspects of competition law having significant bearing on trademark laws. As a judge of a moot court competition, I must admit, we all derive a secret pleasure grilling the participants and robbing them of few hours of their happiness. However, it is also true that this is only to bring out the best in them and test their mettle.
I don’t know which teams qualified to the next rounds and which team eventually won the competition. However, I sincerely believe that all teams who participated were excellent and well prepared. Judging this moot would definitely remain as a special memory to be treasured.
 2014 (60) PTC 465 (SC)
 2013 (54) PTC 578 (Madras) (DB)