Classification of Rule 8 and Rule 8A of Companies ( Appointment and Remuneration of Managerial Personnel) Amendment Rules,2014.

Classification of Rule 8 and Rule 8A of Companies (Appointment and Remuneration of Managerial Personnel) Amendment Rules,2014.

Rule 8 Appointment of Key Managerial Personnel.-

Every listed company and every other public company having a paid-up share capital of ten crore rupees or more shall have whole-time key managerial personnel.

Considering Rule 8 the appointment of KMP would be done for all Public Companies and Listed Companies having Paid Up share capital of Rs. 10 Crore. The word every other consists of those Public Companies having paid up share capital of Rs. 10 Crore, which further means below mentioned companies are not required to appoint any KMP:

a)       A Private Company(Irrespective of its Capital Size).

b)      A Public Company having Paid up Share Capital of Less than 10 crore.

Now Rule 8A 

“8A. Appointment of Company Secretaries in companies not covered under rule 8.—A company other than a company covered under rule 8 which has a paid up share capital of five crore rupees or more shall have a

whole-time company secretary.”

a)    Interpreting the substance of the rule - A company other than a company covered under rule 8  = A  Private Company(Irrespective of its Capital Size) and A Public Company having Paid up Share Capital of Less than 10 crore.

b)   Limit of the required appointment of Company Secretary under the Rule 8A= Company having Paid Up share  Capital of Rs. 5 Crore and above, Irrespective of Company Type.

Conclusion:

The Rule 8A has an overriding effect on the terms of Appointment of Company Secretaries. The wordings of the Rule 8A are self-explanatory about the word A Company – Thus, removing the Barrier of Classification of company whether public or private. Therefore we can conclude that the Any Company having paid up share capital of Rs. 5 Crore and above have to appoint a whole-time company secretary and the same shall further be part of KMP for the companies as defined in Rule 8 of Companies (Appointment and Remuneration of Managerial Personnel) Amendment Rules, 2014.

Key Managerial Personnel

Chapter XIII of the Companies Act, 2013 read with Companies (Appointment and Remuneration of Managerial Personnel) Rules, 2014 deal with the legal and procedural aspects of appointment of Key Managerial Personnel including Managing Director, Whole-time Director or Manager, managerial remuneration, secretarial audit etc.

Key Managerial Personnel

The Companies Act, 2013 has for the first time recognized the concept of Key Managerial Personnel. As per section 2(51) “key managerial personnel”, in relation to a company, means—

 Let’s discuss the definition of Key Managerial Personnel:

Managing Director

Section 2(54) of the Companies Act, 2013, defines ‘managing director’. It stipulates that a “managing director” means a director who, by virtue of the articles of a company or an agreement with the company or a resolution passed in its general meeting, or by its Board of Directors, is entrusted with substantial powers of management of the affairs of the company and includes a director occupying the position of managing director, by whatever name called.

Whole Time Director

Section 2 (94) of the Companies Act, 2013 defines “whole-time director” as a director in the whole-time employment of the company.

Manager

Section 2(53) of the Companies Act, 2013 defines “manager” as an individual who, subject to the superintendence, control and direction of the Board of Directors, has the management of the whole, or substantially the whole, of the affairs of a company, and includes a director or any other person occupying the position of a manager, by whatever name called, whether under a contract of service or not.

Chief Executive Officer & Chief Financial Officer

Section 2(18)/(19) of the Companies Act, 2013 defined “Chief Executive Officer”/ “Chief Financial Officer” as an officer of a company, who has been designated as such by it;

Company Secretary

Section 2(24) of the Companies Act, 2013 defines “company secretary” or “secretary” means a company secretary as defined in clause (c) of sub-section (1) of section 2 of the Company Secretaries Act, 1980 who is appointed by a company to perform the functions of a company secretary under this Act;

 Which Companies are mandatorily required to appoint KMP

As per Section 203 of the Companies Act, 2013 read with the Companies (Appointment and Remuneration of Managerial Personnel) Rules.2014, the following class of Companies, namely

•  Every listed Company and
• Every other public company having paid up share capital of Rs.10 Crores of more

Further, as per recently notified Rule 8A of the Companies (Appointment and Remuneration of  Managerial Personnel ) Rules.2014, a company other than a company which is required to appoint a whole time key managerial personnel as discussed above and which is having paid up share capital of Rs.5 Crores or more shall have a whole time Company Secretary.

ROC filing for Appointment of Key Managerial Personnel and /or Changes in Key Managerial Personnel :

Penalty

If a company contravenes the aforesaid provisions ( contained in section 203 of the Companies Act ), the company shall be punishable with a minimum fine of Rs.100000 and maximum of Rs.500000. In addition every director and key managerial personnel of the company who is in default shall be punishable with fine which may extend to Rs. 50000 and where the contravention is continuing one, with a further fine which may extend to Rs.1000 for every day after the first during which the contravention continues.

Intellectual Property Rights ( Indian Perspective)- TradeMarks

Intellectual Property Rights ( Indian Perspective)

Patents, Trade Marks, Industrial Designs, Copy Rights are considered as Intellectual Property. Intellectual Property refers to creation of mind i.e inventions, industrial designs for article, literary and artistic work, symbols etc. used in commerce.

There is two categories one is Industrial Property and Copy rights. Industrial Property consists Trademarks and Patents etc. and  Copy rights covers Artistic works, Literary works etc.

What are the Intellectual Property Rights ?

• Rights which can be used for protecting different aspects of an inventive works for multiple protection. 
• IPR ( Intellectual Property Rights ) are largely territorial rights excepts copyrights, which is global in nature.
• IRP can be assigned , gifted , sold and licensed like any other property.

We here discuss about Trademarks briefly.

Trademarks :

• A symbol, logo , word, sound,color,design or other device that is used to identify a business or product in commerce.
• Different symbols are :

™ Intent to use application filed for product

℠ Intent to use application filed for services.

® Registered trademarks.

Applicability of Trademarks :

• A trademark is a sign Used on , or in connection with the marketing of goods or services.
• "Used on " the goods means that it may appear not only on the goods are when they are sold.

Is the registration of trademarks is mandatory in India ?

No the registration of trademarks is not mandatory in India but it is advisable to do so.

Following Marks can be registered under the Indian Trademark law.

• Names
• Invented / Coined words
• Letters 
• Device
• Shape of Goods
• Slogan
• Signature
• Sound Marks etc.

Remedies for Trademark infringement :

A suit can lie in District or High Court.

• Punishment extends from 6 months to 3 years.
• A permanent bans on engaging in commercial activities.

Example of a successful civil enforcement action 

• 3 suits filed by Adids saloman AG in the Delhi High Court against counterfeiters
• At the initial stage, infringing goods were seized by the Local Commissioner
• Cases were decreed recently and damages of Rs.15 laks awarded to Adids Saloman.