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Showing posts from July, 2015

Parasitic proposal

Pratyush Nath Upreti

After almost eight long years of tussle, the people of Nepal finally have a draft constitution. The proposed text has disappointed several interest groups and thereby, has been heavily criticised. My first impression of the draft constitution was that it was lengthy and unclear, making it look like an unedited version of a political manifesto. Even so, finally, we at least have a draft constitution which will hopefully be an inclusive constitution when it is finalised.

Unnecessary provision

There are a few provisions in the draft constitution which are practically meaningless. One of them is Article 38, which guarantees the right to employment as a fundamental right. According to 38 (1), every citizen is entitled to the right to employment subject to terms and conditions imposed by law. This provision is followed by a most bizarre clause which guarantees citizens an unemployment allowance until they land a job. Prima facie, this provision may look attractive and…

Parasitic proposal | Oped | :: The Kathmandu Post ::

"Including the right to employment under fundamental rights with the provision of an enforcement mechanism through the Supreme Court is suicidal. This is because it puts an enormous burden on the state. For me, the right to employment in the draft constitution is a new form of slavery. It devalues the energies of the youth and turns them into slaves. The young people do not need allowances, they need a platform to utilise their skills and incentives to be creative and lead a dignified life instead of depending on unemployment benefits."
Parasitic proposal | Oped | :: The Kathmandu Post ::

Politics of smoke

Pratyush Nath Upreti

On June 30, The New York Times ran a news report: "U.S. Chamber of Commerce Works Globally to Fight Antismoking". Chief Secretary Leela Mani Paudyal said he had received an email from a representative of US Chamber warning Nepal not to devise strict anti-tobacco measures. The reason, according to the news report, was that such measure "would negate foreign investment" and "invite instability".

In spite of such warning, Nepal introduced very strict labeling requirement in tobacco packaging. This highlights government concern about dire health effects of tobacco consumption and to some extent it could also be considered a breakthrough in resisting foreign influences.
Every year tobacco consumption results in billions of death globally. Nepal is no exception. According to National Demographic and Health Survey 201l, 52 percent of men and 13 percent of women use tobacco in Nepal. The survey also reveals increasing tobacco consumption amon…

Engineering compromise: does it have any significance in design law?

Pratyush Nath Upreti

One of the most debated topics in European design law is a ‘technical character’ criterion for determining the scope of design protection. Although theoretically it looks clear, it has in practice certainly raised the eyebrows of lawyers trying to convince courts that the feature in question is not dictated by its technical function. Article 8(1) of the Community Design Regulation denies protection to the features of appearance of a product which are solely dictated by its technical function. There is a plethora of decisions that have given direction in determining product technical function. It is an established principle that the technical character must not be assessed by the perception of the informed user; rather, it must be assessed objectively (R 211/2008-3, ‘Fluid Distribution Equipment, 29 April 2010), which states:

‘the technical functionality of the features of a design may be assessed, inter alia, by taking into account of the documents relating to pa…

Free-riding on the repute of trademarks – Does protection generate innovation?

On April 9-11, 2015, we had the opportunity to participate in the 16th EIPIN Congress held at the European Patent Office and at the Max Plank Institute for Innovation and Competition. On the second day of the Congress, we had a module on ‘The Need to Limit the Scope of Intellectual Property’ where we had the pleasure of listening to Prof. Ansgar Ohly.

The speaker began the session by explaining how innovation is normally associated with patents – which create a financial motivation for invention in return for the disclosure of the invention to the public[1] – and copyright – by promoting creativity through the attribution of exclusive rights to creators. It is not the case with trademarks, whose rationale is more connected with the protection of consumers by capacitating them to make informed decisions in the marketplace.

Free-riding

The term ‘free riding’ is often described as one of the component of unfair competition. According to the World Intellectual Property Organization (WIPO),…

Tread with care

Pratyush Nath Upreti

On June 19, the Supreme Court of Nepal, headed by Justice Girish Chandra Lal, deliberated on the case of Vijay Kant Karma and others vs The Office of Prime Minister and Council of Ministers & others, and issued an interim order for the implementation of a recent 16-point deal inked by four major political parties. On the one hand, the Supreme Court decision has been widely criticised by the legal fraternity and scholars. Their concern seems to be genuine, considering the recent tussles between the judiciary and Parliament. But on the other hand, Madhesi parties opposed to the deal and other minority groups have welcomed the same stay order.

Political questions

There are two important aspects to the Court’s decision. The first aspect is that the recent decision of the Supreme Court has been criticised for being a political question. What is a political question? In his article, ‘The Political Question Doctrine: Suggested Criteria’ (Duke Law Journal, 2005), Jes…