Anand and Anand

Neeti Wilson, Partner, [email protected] Kartik Madankar, Associate, [email protected] Introduction Agriculture remains the backbone of the Indian economy, providing livelihoods to a significant portion of the population and contributing substantially to national economic growth. Plant varieties play a crucial role in ensuring food security, supplying fodder, and supporting numerous agricultural and industrial activities. Advancements in agricultural science have enabled breeders to develop new plant varieties possessing desirable traits such as higher yields, resistance to pests and diseases, improved nutritional content, enhanced adaptability to climatic conditions, and attractive ornamental characteristics. These innovations are the result of years of research, innovation, and substantial investment by the seed industry. Given the significant resources involved in developing new plant varieties, an effective intellectual property protection framework is essential to encourage continued investment and innovation. Article 27.3(b) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) permits member countries to protect plant varieties either through patents, an effective sui generis system, or a combination of both. India chose to adopt a sui generis system suited to its socio-economic and agricultural conditions by enacting the Protection of Plant Varieties and Farmers' Rights Act, 2001 (PPV&FR Act). International Recognition of Provisional Protection The concept of provisional protection is well recognized in international plant variety protection systems. Article 13 of the 1991 Act of the International Convention for the Protection of New Varieties of Plants (UPOV Convention) requires member states to provide breeders with provisional protection during the period between the publication of an application and the grant of a breeder's right. Although member states retain flexibility in determining the nature and scope of such protection, the Convention mandates that breeders should, at a minimum, be entitled to equitable remuneration from persons who perform acts requiring the breeder's authorization after rights are granted. The UPOV approach reflects an acknowledgment that the period between filing and grant constitutes a vulnerable phase in the life cycle of plant variety protection. Without provisional protection, third parties may commercially exploit a variety before registration is completed, thereby diminishing the value of the breeder's eventual rights. While India has consciously adopted a sui generis framework distinct from the UPOV system, Article 13 offers a useful benchmark for understanding the policy rationale underlying provisional protection and highlights the importance of safeguarding breeders' interests during the pendency of registration proceedings. The PPV&FR Act seeks to balance the interests of plant breeders and farmers by protecting breeders' rights while recognizing the traditional role of farmers in conserving, improving, and making available plant genetic resources. Upon registration, a breeder is granted exclusive rights over a registered variety for a period of fifteen years in the case of most crops and eighteen years in the case of trees and vines. However, an important question arises: what protection is available to a breeder during the period between the filing of a registration application and the grant of registration? This issue assumes significance because the registration process under the PPV&FR Act is often lengthy, involving technical examination and DUS (Distinctiveness, Uniformity and Stability) testing over multiple crop seasons and locations. During this intervening period, breeders may be vulnerable to unauthorized exploitation of their varieties. It is in this context that the concept of provisional protection assumes importance. Statutory Basis of Provisional Protection under Section 24(5) Section 24(5) of the PPV&FR Act provides a form of provisional protection to plant breeders. The provision empowers the Registrar to issue appropriate directions to safeguard the breeder's interests against any abusive acts committed by third parties during the period between the filing of an application and the grant of registration. However, the Act neither defines what constitutes an "abusive act" nor specifies the nature of directions that may be issued by the Registrar. This legislative ambiguity creates uncertainty regarding the scope and effectiveness of protection available to breeders during the pendency of registration proceedings. Comparison with Provisional Rights under Patent Law A comparison with the Patents Act, 1970 illustrates the lack of clarity under the PPV&FR Act. Section 11A(7) of the Patents Act provides that from the date of publication of a patent application until the grant of a patent, the applicant enjoys rights similar to those of a patentee, although infringement proceedings can be instituted only after the patent is granted. Upon grant, the patentee may seek damages for unauthorized use occurring from the date of publication of the application. The patent regime therefore establishes a clear framework regarding the rights available during the pre-grant period and the remedies that may subsequently be claimed. By contrast, Section 24(5) of the PPV&FR Act leaves unanswered several important questions concerning the nature of protected interests, the conduct that constitutes an abusive act, and the remedies available to an aggrieved breeder. The comparison highlights the need for greater legislative clarity regarding provisional protection under the PPV&FR Act. Growing Relevance of Section 24(5) Recent years have witnessed a significant increase in plant variety registrations, with 2,017 certificates issued in 2024 and 2,073 certificates issued in 2025. This trend is expected to continue as awareness regarding plant breeders' rights grows among seed companies and agricultural innovators. At the same time, the registration process remains inherently time-consuming. Before a certificate of registration can be granted, the applicant's variety must undergo rigorous DUS testing conducted by the Protection of Plant Varieties and Farmers' Rights Authority over multiple crop seasons and locations. Only after the Authority is satisfied that the variety fulfils the statutory requirements, the registration is granted. The delay inherent in this process creates a period during which breeders may face unauthorized use, commercialization, or misappropriation of their varieties. The increasing number of petitions filed under Section 24(5) reflects the practical significance of this concern. It is understood that several such petitions are presently pending before the Authority, and their number is likely to increase as the plant variety protection regime continues to mature. Defining "Abusive Acts": The Need for a Principled Interpretation A significant weakness of Section 24(5) is the absence of a statutory definition of the expression "abusive acts." The Act neither explains the circumstances in which a breeder's interests may be considered threatened nor identifies the categories of conduct that justify the exercise of the Registrar's powers. Consequently, the provision leaves considerable room for uncertainty in its application. A purposive interpretation of Section 24(5), however, suggests that an abusive act should encompass any unauthorized commercial or regulatory conduct that has the potential to prejudice the breeder's proprietary interests in a variety pending registration. The rationale underlying provisional protection is to preserve the commercial value of the breeder's innovation during the period in which the registration application is under examination. Therefore, acts that undermine the breeder's ability to exclusively exploit the variety after registration should ordinarily fall within the scope of Section 24(5). Viewed from this perspective, abusive acts may include the commercial production, sale, export, or import of a variety that is the subject matter of a pending application. Similarly, the adoption of an identical or deceptively similar denomination for a competing variety may mislead the market and dilute the distinct identity of the applicant's variety. Unauthorized use of a pending variety for the development of an Essentially Derived Variety (EDV) may also amount to an abusive act, particularly where such use enables a third party to appropriate the breeder's innovation before registration is granted. In addition, conduct by licensees or agents that exceeds or violates the scope of authority granted by the breeder may warrant protection under Section 24(5). Likewise, the submission of false or misleading information concerning a pending variety, whether before the Authority or in the marketplace, may adversely affect the breeder's commercial interests and undermine the integrity of the registration process. Although these examples are not exhaustive, they illustrate that the concept of abusive acts should be interpreted in a manner that furthers the legislative objective of protecting breeders against commercial misappropriation during the pendency of registration proceedings. Nature of Reliefs Available under Section 24(5) Although Section 24(5) authorizes the Registrar to issue directions for protecting breeders' interests, it does not specify the nature of such directions. Nevertheless, guidance may be derived from other provisions of the PPV&FR Act. Section 11 of the Act confers upon the Authority and the Registrar powers analogous to those of a civil court. These powers include receiving evidence, administering oaths, summoning witnesses, compelling the production of documents, and issuing commissions for the examination of witnesses. The Authority and Registrar may also award costs, which are enforceable in the same manner as a decree of a civil court. Further guidance may be derived from Section 66 of the Act, which prescribes the remedies available in infringement proceedings. Section 66 empowers courts to grant injunctions and, at the option of the breeder, damages or an account of profits. The provision also contemplates ex parte injunctions and interim measures such as preservation of evidence, discovery of documents, and attachment of property to secure damages or costs. Although Section 66 applies specifically to infringement proceedings involving registered varieties, the principles underlying these remedies may assist in shaping the contours of relief under Section 24(5). A purposive interpretation of the provision would suggest that the Registrar's powers should be sufficiently broad to prevent irreversible harm to a breeder's interests during the pendency of a registration application. Judicial Interpretation of Section 24(5) The constitutional validity of Section 24(5) has been the subject of considerable judicial scrutiny. In Prabhat Agri Biotech Ltd. v. Registrar of Plant Varieties & Ors., the Delhi High Court declared Section 24(5) unconstitutional, holding that it conferred unguided and excessively broad powers upon the Registrar in relation to vaguely defined "abusive acts." According to the Court, the absence of statutory safeguards created a risk of arbitrary exercise of power and rendered the provision vulnerable under Article 14 of the Constitution. However, the operation of this judgment was subsequently stayed by the Supreme Court in Pioneer Overseas Corporation v. Kaveri Seed Company Limited. Consequently, Section 24(5) continues to remain operative pending final adjudication by the Supreme Court. The legal position was revisited in UPL Limited v. Registrar & Anr. (2024), where the Delhi High Court examined the effect of the Supreme Court's stay order. The Court held that Section 24(5) remains fully operative until the Supreme Court finally decides the matter. It further observed that the Registrar's refusal to entertain a Section 24(5) application on the ground that protection was available only after registration was contrary to the express language of the statute. The Court emphasized that the stay of a judgment declaring a statutory provision unconstitutional does not render the provision inoperative. Accordingly, the Registrar's order was set aside and the application was restored for consideration on its merits. The decision in UPL Limited is significant because it reaffirms the continuing availability of provisional protection under the PPV&FR Act and underscores the legislative intent behind Section 24(5), namely, the protection of breeders during the pendency of registration proceedings. Conclusion and Recommendations Section 24(5) occupies a unique position within the PPV&FR Act. It represents the legislature's recognition that breeders require protection not only after registration but also during the often lengthy period in which their applications remain pending before the Authority. However, the provision suffers from two significant deficiencies: first, the absence of a statutory definition of "abusive acts"; and secondly, the lack of clarity regarding the nature and scope of relief that may be granted by the Registrar. The judicial developments in Prabhat Agri Biotech, Pioneer Overseas, and UPL Limited demonstrate both the importance of Section 24(5) and the difficulties arising from its present drafting. While the provision continues to operate, uncertainty regarding its scope remains a source of litigation and administrative inconsistency. Given the increasing number of plant variety registrations and the growing commercial significance of proprietary seed technologies, there is a compelling case for legislative or regulatory intervention. The PPV&FR Authority may consider issuing detailed guidelines identifying the categories of conduct that constitute abusive acts and clarifying the range of interim and final reliefs available under Section 24(5). Alternatively, the provision may be amended to expressly define the scope of provisional protection and the powers of the Registrar. Such reforms would enhance legal certainty, reduce litigation, strengthen confidence in India's plant variety protection regime, and further the broader objectives of encouraging innovation, investment, and agricultural development. A clearer and more predictable framework for provisional protection would ultimately reinforce the effectiveness of India's sui generis system for the protection of plant varieties and contribute to the long-term growth of the agricultural sector. ---------------------------------------- Cases Referred: Prabhat Agri Biotech Ltd v Registrar of Plant Varieties & Ors, WP(C) No 250/2009 (Delhi High Court, 2 December 2016). Pioneer Overseas Corporation v Kaveri Seed Company Ltd, SLP (C) No 19195/2017 (Supreme Court of India, 31 July 2017). UPL Ltd v Registrar & Ors, CA (COMM IPD-PV) 3/2022 (Delhi High Court, 22 February 2024).

Anand and Anand secures favourable order protecting rights in BRIDGESTONE, a recognised well-known trademark. New Delhi, May 21, 2026: Anand and Anand has secured a significant victory for Bridgestone Corporation before the Trade Marks Registry, Delhi, which has refused registration of the mark ‘TRI BIGSTONEPUNCTURE’ (label) in Class 12 after finding it deceptively similar to the globally recognised BRIDGESTONE trademark. In a detailed order, the Registrar of Trade Marks upheld Bridgestone’s opposition and concluded that the impugned mark was likely to cause confusion among consumers. The Registry observed that the dominant element “BIGSTONE” appeared to have been derived from BRIDGESTONE by merely dropping certain letters and held that the additional elements in the applicant’s mark were insufficient to distinguish it from Bridgestone’s well-known mark. The Registry further found that the competing marks were visually, structurally and phonetically similar, and reiterated the settled principle that where the essential feature of a prior trademark has been adopted, the presence of additional matter does not dispel the likelihood of confusion. Importantly, the Registrar rejected the applicant’s defence of honest adoption and held that there was no satisfactory explanation for the adoption of the impugned mark. The order records that the adoption appeared unfair and mala fide, reinforcing the protection available to established and reputed brands against attempts to appropriate their goodwill. The applicant’s claim of use was also rejected, with the Registry holding that the evidence on record was insufficient to establish the claimed user. In addition, the applicant’s argument that its goods were distinct from those of Bridgestone was not accepted. The Registry held that the goods shared a common consumer base and were likely to create confusion in the marketplace. The order also recognises Bridgestone’s extensive reputation and prior rights in the BRIDGESTONE mark, noting its inclusion in the Registrar’s list of well-known trademarks. The decision underscores the increasing willingness of Indian trademark authorities to scrutinise attempts to adopt marks that closely mimic reputed brands and serves as a reminder that minor textual variations will not insulate an applicant from findings of deceptive similarity where the overall commercial impression remains closely associated with a prior mark. Safir Anand, Head of Trademarks, Commercial and Corporate IP at Anand and Anand, said: “This decision is a strong reaffirmation of the principle that goodwill built over decades cannot be appropriated through cosmetic alterations or clever misspellings. The Registry has rightly recognised that consumer perception remains central to trademark protection and that well-known marks must receive meaningful protection against attempts to ride on their reputation.” The matter was handled by Safir Anand along with Twinky Rampal and Vaishali Sharma from Anand and Anand. About Anand and Anand Anand and Anand is one of India’s leading intellectual property law firms with offices in Delhi NCR, Mumbai, Chennai, Kolkata and Bengaluru. The firm advises and represents clients across patents, trademarks, copyrights, designs, litigation, enforcement and allied areas of intellectual property law as also corporate and commercial laws. For over a century, Anand and Anand has been at the forefront of protecting innovation, brands and creative assets for domestic and international clients.

Lakshmidevi Somanath*   The Supreme Court of India’s 2025 decision in K. Mangayarkarasi and Anr v. N. J. Sundaresan marks an important turn in Indian arbitration jurisprudence and delimits, for the first time, what constitutes the permissibility and the scope of arbitration within the Indian legal order. [1] The case is regarding an application under Section 8 of the Arbitration and Conciliation Act, 1996, within which a trademark-related query is embedded. A close reading of the judgment suggests that there is a wider judicial intent. The Court leans towards allowing the settlement of property-related disputes through private arbitral tribunals rather than by the courts themselves. The judgment also reveals a judicial willingness to admit arbitral involvement in deciding on the veracity of documents in intellectual property cases in India. The Mangayarkarasi judgment thus becomes an important indicator of how far the Supreme Court of India is willing to go to enhance arbitration as a dispute resolving mode in India.   A Familiar Narrative of Disputes   The facts involve a familiar scenario - a family business develops into a valuable brand, the relationships among the stakeholders break down, and disputed documents come to light with accusations of forged signatures. Claims of trademark infringement are joined by complaints about the misappropriation of a disputed brand. The parties filing the dispute invoke arbitration based on contract, while opposing parties argue that issues over trademark rights are public in nature and should be litigated in court. The trial court and High Court reviewed the issue and concluded that a dispute of this character requires judicial resolution. The Supreme Court however, aligns with the contract scheme, and holds that the correct forum is arbitration. It therefore held that the veracity of the forged documents and the trademark rights that emanate from this document, are questions that are to be decided in the arbitration. The reasoning of the Court focuses on the dominant question of the contracts between the parties, holding that they are so central to the dispute, that resort to the particular statutory regime applicable to trademarks is beside the point. In this respect, the Court adopts contract-based analysis as superior to the application of the Trade Marks Act, 1999.   Doctrinal Lineage and Judicial Momentum   Mangayarkarasi thus finds its place in a larger pro-arbitration trend in Indian jurisprudence. The structure of the ratio relies on the lexicon of in rem and in personam rights as enunciated in Booz Allen Hamilton (2011)[2] and other decisions since Ayyasamy Palayappan (2016)[3] refined the fraud exception, and Vidya Drolia (2020)[4] reconstituted the arbitrability analysis through the rubric of minimal judicial intervention. Mangayarkarasi takes these doctrinal trends to their logical conclusion by applying them without reservation to patent and copyright disputes. The tenor of the combined lessons is that most disputes are arbitrable, though with some exceptions. The party that resists arbitration must establish sufficient cause, as emphasized once again in Mangayarkarasi.   From the perspective of the institution, this demonstrates the predilection of courts for speed, specialty, and finality. All these are preferences nurtured by commercial parties and increasingly adopted by the courts. The docket pressures of courts and the need to conserve judicial resources themselves enhance acceptance of arbitration to alleviate congestion. The Mangayarkarasi ruling supports such a practical impulse, supplementing the emergent view of arbitration as a preferred route for resolving certain classes of disputes, including those involving intricate intellectual property agreements.   This development signals a methodological shift in how trademark rights are conceptualized under Indian law. The Court in this judgment, looks at trademarks through a perspective that emphasizes contractual arrangements over public regulative concerns. In Mangayarkarasi, it has approached the dispute regarding trademark as one arising essentially from private agreements rather than issues of public law or market regulation. When framed so, arbitration becomes the natural mechanism for resolving such disputes. This reflects the larger retreat from expansive public law considerations toward contract-centric reasoning. In that sense, Mangayarkarasi represents a sea change in the way trademark rights are treated under Indian law.   Rights in Rem and the Fragility of the Doctrinal Architecture   The Court draws an analytical line between rights in rem and rights in personam. This binary choice conceals the nature of rights in rem and rights in personam, particularly in areas, such as the law of trademarks, which combines public-regulatory and private-contractual elements. Trademarks are neither purely proprietary nor purely contractual; they are public signs that affect competition and consumer choice but are also grounded on private contracts, licenses, and assignments. When a tribunal determines title or other rights to a trademark, the impact ramifies beyond the parties, with potential consequences for market practices as well as licensing arrangements, throughout supply chains, distributors, and licensees. The Court descales those wider implications in its reasoning, making the arbitral outcome an issue of private concern rather than an event with public consequence.   One important implication of Mangayarkarasi involves the transition of contract-based reasoning into the domain of intellectual property. Private settlements and agreements are, of course, essential to IP transactions, ranging from licensing to franchising, co-branding, and assignments. Yet such arrangements do not exhaust the legal dimensions of ownership and market regulation. Mangayarkarasi hence raises important questions with respect to how far contractual mechanisms can substitute for or reshape the underlying rights and protections accorded by trademark law.   Intellectual property transactions perforce involve contractual terms—licensing, franchising, co-branding, and assignments—that frequently carry arbitration clauses. Enforcing such clauses is, of course, legitimate and adds predictability and efficiency. The flip side, however, relates to whether arbitration would redefine the substantive rights imbued in those contracts and, by implication, affect market conduct and ownership determinations beyond the immediate dispute. Mangayarkarasi foregrounds this tension by suggesting a contractual primacy that, in practice, may affect the interpretation and scope of trademark rights.   The Court takes a traditional view of fraud, restricting equality of treatment to cases of gross or pervasive fraud, or to cases involving governmental agencies or other large-scale criminal enterprises. Forgery in a trademark assignment implicates basic issues of ownership and interdiction of unauthorized sales, and referring such issues to private arbitral tribunals involves the delegation of an important aspect of governmental power.   Comparative Glimpses and Global Context   A global overview confirms that India is not alone in confronting the interplay between intellectual property and arbitration. Although contract questions may be arbitrable, jurisdictions with civil-law traditions generally treat trademark disputes as unsuitable for arbitration. Public authorities retain ownership and regulatory oversight in matters affecting the market, and arbitral decisions typically cannot alter foundational IP rights. In Germany, private settlements are permissible for property-related disputes provided they do not modify essential IP rights or public records. France welcomes arbitration for contractual disagreements but reserves courts’ jurisdiction over questions concerning trademark validity and public-interest considerations. In common-law jurisdictions such as the United States, intellectual property arbitration is recognized, yet courts retain ultimate authority over the validity of rights, preserving a delineation between private adjudication and public law. Thus, Mangayarkarasi represents a unique articulation of the position taken by India - relative tolerance for arbitration in the context of IP disputes, marked by an impetus toward speed and efficiency perhaps at the cost of safeguards under public law. What emerges is a pragmatic approach that makes use of arbitration as the means to reduce court congestion, but at the same time invites prudent reflection on the limits of arbitral authority within the context of intellectual property.   Conclusion   The Mangayarkarasi decision was a landmark development for Indian arbitration, consolidating its utility and signaling, to a certain extent, alignment with international practices. However, the decision also brings to the forefront, unresolved questions as to the public-law dimension of IP disputes. It also signals larger ramifications of arbitration for trademark governance and market integrity. Mangayarkarasi illustrates the trajectory of the expansion of arbitration but also signals conceptual and practical limits that may require continuing adjustment. The ultimate test will lie in how the courts balance arbitral determinations in trademark cases against the interests of non-consenting parties and also against the broader regime of public law.   *Lakshmidevi Somanath is Partner – Litigation & Strategy at Anand and Anand, India. She formerly served in the Intellectual Property Appellate Board, GoI as a Member Judge. [1] K. Mangayarkarasi & Anr. v. N.J. Sundaresan & Anr., 2025 INSC 687 [2] Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd., (2011) 5 SCC 532. [3] A. Ayyasamy v. A. Paramasivam, (2016) 10 SCC 386. [4] Vidya Drolia v. Durga Trading Corporation, (2021) 2 SCC 1.

The evolution of India’s securities market has brought with it an increasingly sophisticated regulatory ecosystem. At the centre of this framework stands the Securities and Exchange Board of India (SEBI), tasked not merely with punishing violations, but with preserving market integrity and investor confidence. Among the many enforcement tools available to SEBI, perhaps none has generated as much debate as the settlement mechanism. For instance, SEBI concluded proceedings against four entities linked to the former Indiabulls Real Estate Ltd. by accepting a settlement amount of ₹10.49 crore. The investigation focused on alleged diversion of funds from Albasta Infrastructure Ltd, a subsidiary of Indiabulls, to entities connected to promoters between fiscal years 2010 and 2017. By entering into a consent order, the companies avoided contested adjudication proceedings under SEBI’s PFUTP (Prohibition of Fraudulent and Unfair Trade Practices) regulations. The regulator clarified that the settlement order is without prejudice to its right to initiate enforcement action. It said such action could be initiated if any representation made during the settlement proceedings is subsequently found to be untrue, if any settlement condition is breached, or if any discrepancy is found in arriving at the settlement terms. The settlement for some represents regulatory pragmatism which is often viewed as an efficient way to resolve disputes, reduce litigation, and ensure faster compliance. For others, it raises uncomfortable questions about accountability, transparency, and whether financial penalties alone can adequately address serious market misconduct. The answer, perhaps, lies somewhere in between. The Philosophy Behind Settlement The settlement framework allows entities and individuals facing regulatory proceedings to resolve matters without admission or denial of guilt, usually upon payment of a settlement amount and adherence to certain conditions. The idea is not unique to India. Mature regulators across jurisdictions, including the U.S. Securities and Exchange Commission (SEC), routinely rely on negotiated settlements as part of modern enforcement strategy. Litigation is expensive, time-consuming, and uncertain. Markets, however, require speed and stability. SEBI’s settlement mechanism emerged from this practical reality. Not every violation warrants years of adjudication. Technical lapses, disclosure delays, procedural non-compliance, or interpretational disputes often lend themselves better to negotiated closure rather than adversarial proceedings. Over time, the mechanism has become deeply embedded within India’s securities regulation framework. Where Settlement Has Worked Effectively One of the strongest arguments in favour of settlement is its ability to preserve commercial continuity while still ensuring regulatory compliance. For listed companies, prolonged proceedings can have severe consequences far beyond legal costs. Investigations may affect stock prices, financing opportunities, mergers, investor sentiment, and governance perceptions. In many cases, even unresolved allegations can become commercially damaging. Settlement offers finality Several large corporates and market intermediaries have used the settlement route to resolve disclosure-related proceedings, delayed filings, broker compliance issues, and procedural violations without prolonged reputational warfare. In such matters, settlement has often allowed businesses to undertake corrective measures while avoiding years of uncertainty. The settlement mechanism has also proved useful in cases where violations were not necessarily fraudulent but arose from ambiguity in regulatory interpretation. For example, disputes relating to takeover disclosures, inadvertent insider trading window violations, or delayed compliance reporting have frequently been resolved through settlement. In these situations, SEBI secures penalties and compliance commitments, while businesses avoid drawn-out litigation before the Securities Appellate Tribunal (SAT) and higher courts. The mechanism also benefits the regulator institutionally. SEBI deals with thousands of enforcements matters across intermediaries, listed entities, investment advisers, brokers, and market participants. Full adjudication of every proceeding would place enormous strain on administrative and judicial resources. Settlements allow SEBI to focus enforcement attention on more serious cases involving systemic fraud, market manipulation, or investor exploitation. The Cases That Triggered Criticism Despite its utility, the settlement framework has repeatedly come under public scrutiny particularly when deployed in high-profile matters involving influential market participants. Criticism tends to intensify when allegations involve insider trading, fraudulent disclosures, accounting irregularities, or market manipulation. In such cases, settlement is often viewed not as pragmatic enforcement, but as negotiated escape from accountability. The most commonly cited concern is the perception of “pay and move on.” This criticism became especially prominent in certain high-profile corporate matters where entities settled proceedings involving serious allegations without any formal admission of wrongdoing. While legally permissible, such outcomes often leave investors dissatisfied because the underlying factual issues remain unresolved. In some cases, involving insider trading allegations, market observers questioned whether monetary settlements alone sufficiently deter future misconduct. Critics argued that when serious allegations conclude without detailed findings or admissions, the regulatory process may appear opaque or lenient. The criticism is not entirely misplaced. Capital markets operate heavily on trust. Investors expect regulators not only to resolve disputes efficiently but also to publicly establish accountability where misconduct affects market fairness. Excessive reliance on settlements in serious matters risks creating a perception that enforcement can be negotiated rather than adjudicated. The challenge becomes even sharper when settlements involve large corporations with substantial legal resources. Smaller market participants may feel that sophisticated entities are better positioned to navigate regulatory negotiations and secure commercially favourable outcomes. The Stiffness Between Speed and Accountability At the heart of the debate lies a deeper institutional question: What should securities regulation primarily seek to achieve? If the objective is administrative efficiency and speedy enforcement, settlement is an effective tool. It reduces pendency, secures penalties quickly, and encourages compliance However, if the objective is public accountability and development of legal precedent, settlements may appear inadequate. Since matters conclude without findings on merits, important questions of securities law often remain unanswered. This has broader implications. Detailed adjudicatory orders help shape jurisprudence, clarify compliance standards, and guide market behaviour. Excessive settlement may deprive the market of such regulatory guidance. At the same time, forcing every matter into litigation may itself weaken enforcement. Delayed proceedings often lose deterrent value, while prolonged uncertainty harms businesses and investors alike. The answer therefore cannot be absolutist. SEBI’s Attempt to Strike a Balance Recognising these concerns, SEBI has gradually tightened its settlement framework over the years. Certain serious offences particularly those involving wilful fraud, market-wide manipulation, diversion of funds, repeat violations, or matters with significant investor impact face greater scrutiny and may not easily qualify for settlement. SEBI has also introduced structured settlement guidelines, internal committees, and more detailed considerations while evaluating applications. Factors such as the gravity of allegations, stage of proceedings, conduct of the applicant, and impact on investors increasingly influence settlement decisions. In recent years, the regulator appears to have adopted a more calibrated approach: using settlement as a compliance tool in appropriate cases while reserving aggressive enforcement for egregious misconduct. This distinction is crucial. A delayed disclosure violation and a pump-and-dump manipulation scheme cannot be treated identically merely because both technically fall under securities law violations. Beyond Law: The Reputation Factor Interestingly, settlement itself has evolved into a reputational calculation for companies. Earlier, settlement was often viewed as a quiet commercial resolution. Today, public scrutiny, media attention, shareholder activism, and governance expectations mean that even settled proceedings can significantly affect corporate reputation. Many companies now weigh not only the legal consequences of settlement, but also the optics of settling. In some situations, entities have chosen to litigate precisely because they believed settlement could be interpreted as implied wrongdoing, despite the “without admission or denial” framework. This changing dynamic reflects the growing maturity of Indian capital markets. Conclusion The debate surrounding settlement with SEBI weighs heavily on context, proportionality, and regulatory judgment. When used carefully, settlement is an indispensable enforcement mechanism. It promotes efficiency, reduces unnecessary litigation, secures compliance, and allows markets to function without prolonged uncertainty. However, when applied mechanically or in cases involving serious misconduct, it risks undermining public confidence and diluting the deterrent force of securities regulation. Ultimately, the legitimacy of the settlement regime depends not merely on the existence of the mechanism, but on how transparently and consistently it is exercised. In modern securities regulation, efficiency matters. But accountability matters just as much. The continuing challenge for SEBI lies in balancing both without compromising either.   By Mr. Safir Anand, Senior Partner, and Ms. Ritu Bhargava, Lead Managing Associate

In a landmark moment for Indian intellectual property law, the Trademarks Registry has accepted for advertisement the country’s first olfactory trademark a floral fragrance reminiscent of roses as applied to tyres. The order represents a paradigm shift in how Indian law perceives and accommodates non-traditional trademarks. It also situates India firmly within an international conversation that has spanned more than three decades and continues to redefine the boundaries of trademark protection. This decision carries special significance because it draws together three powerful forces: global jurisprudence, scientific innovation, and experienced legal stewardship. Among the latter, the appointment of Mr. Pravin Anand as amicus curiae was a critical moment in the proceedings. With decades of experience in trademark law and a history of pushing conceptual boundaries, he offered impartial guidance in an area where Indian precedent is almost non-existent. His APAA article “Science, Art and Law Relating to Smell” had already identified many of the challenges posed by olfactory marks demonstrating not only expertise but a degree of vision. In this case, theory and practice met at precisely the right juncture, helping the Registry navigate an entirely new category of trademark evidence. The International Stage: Three Decades of Experimentation with Scent Marks The question of whether smell can function as a trademark is not new. Globally, jurisdictions have grappled with the tension between legal formality and sensory subjectivity for many years. United Kingdom: The First Rose In fact, Sumitomo’s rose-scented tyres were the first smell mark ever registered in the UK, granted in 1996. The UK Trade Marks Registry at that time accepted a verbal description alone as an adequate graphical representation. That registration stands today as one of the earliest recognitions of olfactory marks anywhere in the world making the present Indian application both novel and historically connected. European Union: From Openness to Caution The EU’s early jurisprudence was adventurous. In Vennootschap Onder Firma Senta (1999), the “smell of fresh cut grass” for tennis balls was accepted again on the basis of a verbal description. The EUIPO compared smell descriptions to musical notation, an imperfect yet workable way to represent a sensory experience. However, this openness was curtailed by the seminal Siekmann decision (2002), where the Court of Justice held that a smell must be represented in a manner that is clear, precise, self-contained, easily accessible, intelligible, durable, and objective. Since no representation at the time met this standard, the EU effectively closed the door to smell marks for nearly two decades. United States: Functionality Above All The U.S. takes a functional approach. A smell can be protected only if: it is non-functional, and it serves purely as a source identifier. Thus, a plumeria scent for sewing thread or bubble gum scent for footwear may be registrable, but any smell intrinsic to a product’s purpose (like perfume or air freshener) is not. Australia: Open but Demanding Australia’s statute explicitly recognises scent marks, yet the onus is heavy. The applicant must demonstrate non-functionality, distinctiveness, and a sufficiently clear description. Very few scent marks have succeeded. Scientific Innovation: A Breakthrough in Graphical Representation The Indian statute requires all trademarks including non-traditional marks to be capable of graphical representation. Historically, this single requirement has defeated every attempt at protecting olfactory marks. In this case, however, the applicant submitted a groundbreaking scientific visualisation developed at the Indian Institute of Information Technology, Allahabad, and adopted by the amicus. This model, reproduced below, depicts the rose-like scent as a vector in seven-dimensional olfactory space, corresponding to seven fundamental scent categories: floral, fruity, woody, nutty, pungent, sweet, and minty.   This representation is not only innovative but bridges the gap between science and law in precisely the way courts worldwide have long sought. It offers: objectivity, through measurable scent-component ratios, precision, through dimensional axes, intelligibility, via a radar-plot visual structure, and durability, as the scientific formulation can be persisted indefinitely. The CGPDTM expressly found that this model satisfied the mandatory requirement for graphical representation under Section 2(1)(zb), echoing the Siekmann criteria while enabling India to chart its own path. Distinctiveness: Arbitrary Scent as Strong Branding Distinctiveness lies at the heart of trademark law, regardless of jurisdiction. The order emphasises that a rose scent on tyres is fundamentally arbitrary a concept echoed repeatedly in international jurisprudence. The Registry reasoned that tyres typically emit a strong rubber smell; thus, the sudden, unexpected perception of roses would create an immediate and unmistakable association with a single source. As the order notes, this olfactory contrast would leave “a very strong impression” on consumers, satisfying both inherent distinctiveness and the practical test of source-identification. This reasoning aligns with cases such as the U.S. registration of scented thread: where a smell bears no connection to the product’s function, its distinctiveness strengthens dramatically. The Role of the Amicus Curiae: Experience and Vision in Uncharted Territory The appointment of Mr. Pravin Anand as amicus curiae was a crucial aspect of this proceeding. Known for his deep experience in trademark litigation and his long-standing scholarship on non-traditional marks, he was tasked with offering an impartial, expert assessment on issues with no prior Indian precedent. What is noteworthy is how closely the issues in the case mirrored those he had previously analysed in his APAA article. There, Mr. Anand argued that smells occupy a unique space where science, art, and law intersect, and that legal systems must evolve to accommodate sensory indicators of origin. His suggestions particularly on the need for technological tools to assist graphical representation found concrete realisation in this case. Thus, while his role remained purely advisory, this matter demonstrates how scholarship, vision, and practical experience can converge to give direction to novel legal problems. Conclusion: India Joins the Global Dialogue The acceptance of India’s first olfactory mark for advertisement marks not only a domestic milestone but an international statement. With this order, India: aligns itself with global jurisprudence, embraces scientific advances in sensory representation, enables businesses to innovate in multisensory branding, and signals openness to the evolution of non-traditional trademarks. As trademark law continues to expand beyond the visual and into richer sensory domains, India’s decision stands as a thoughtful, forward-looking contribution to the global legal conversation on what a trademark can and should be. Authors: Vaishali R Mittal, Senior Partner – Litigation & Strategy, Anand and Anand Email: [email protected]