LAW OF DISCLAIMER

What is a disclaimer?

• Disclaimer refers to a statement, assertion or a document that disclaims or denies responsibility, affiliation, towards a legal claim.

• In simple words, disclaimer can be said to be a statement that one is not responsible for something. It protects one from the claims of liability.

• Disclaimers basically help people and their businesses from legal action through publishing ‘Terms of Service’ and ‘Disclaimers’ in order to protect their business from claims.

Examples of Disclaimers?

• The most common disclaimer is the one that comes on television/ theatre screens right at the beginning of movie. It says “The events, characters and firms depicted in this film are fictitious. Any similarity to actual persons, living or dead is purely coincidental.”

• An owner of a land/playground/construction site or an area involving risk of physical injury putting up a warning sign: “enter at your own risk/ use at your own risk.”

• Disclaimer on a website: “Disclaimer of liability- The material and information contained on this website is for general information purposes only. You should not rely upon the material or information on the website as a basis for making any business, legal or any other decisions.”

• Confidentiality disclaimer in Emails: “This message contains confidential information and is intended only for the individual named. If you are not the named addressee you should not disseminate, distribute or copy this email. You cannot use or forwards any attachments in the email. Please notify the sender immediately by email if you have received this email by mistake and delete this email from your system.”

• Health disclaimer on TV show or film: “Tobacco use leads to cancer, heart attacks, lung disorders and other deadly diseases. The characters shown in this film or programme do not support the use of any type of tobacco products such as Bidi, Cigarettes, Khaini, Zarda, etc. or their promotion in any manner.”

Is Disclaimer unenforceable/ legally binding?

• A disclaimer may or may not be enforceable, it depends on the nature of the disclaimer.

• Disclaimers can be made legally binding by following the general clauses of contracts act and other laws with a reasonable policy. The disclaimer shall not oppose the principle of natural justice.

• Many disclaimer policies ask for the user/customer/viewer to accept the terms and conditions before proceeding, which makes is the best way of making the disclaimer policy applicable to those using it, because of their acceptance.

• If the terms of the disclaimer are fair and easy for the user to read and proceed, the same may be used as a valid piece of evidence in Court by the provider.

• The Disclaimers serve as warning to the users, and that in itself is not sufficient to give them legal protection. Making them a part of terms and conditions(T&C) wherein users have to make an account or purchase a service, is a way to include them in already enforceable and existing contract. When users are asked to expressly accept the terms or disclaimer, it might be difficult for its content thereof to be

• Some disclaimers need to be specific in order to prevent the user from misusing the information and taking legal action.

Does Disclaimer work as defense, like

The Parking booth Manager saying loss of vehicle is not his responsibility?

• The valet ticket obtained from the parking booth of a hotel/restaurant with a disclaimer that ‘parking is at owner’s risk and hotel/restaurant will not be liable for loss or theft of vehicle’ does not absolve the said service provider from his liability.

• The Hon’ble Supreme Court in the case of Taj Mahal Hotel v. United India Insurance Company (Civil Appeal No. 8611 of 2019) decided on 14.11.2019 applied the strict liability approach and reinforced the duty of care and liability of the hotel for property entrusted to it by guests and visitors.The case against the hotel was instituted by the insurance company from whom the car owner had obtained compensation and both the State as well as National Consumer Disputes Redressal Commission applied the principle of Bailment, held that liability could not be precluded by a printed disclaimer or notice on parking tag. Moreover, the Court held that the Hotel was negligent and did not take adequate steps to ensure that the valet car keys were out of reach of outsiders and car was parked in a safe location.

Trademark disclaimers

• Under the Trade Marks Act, 1999, upon registration of mark, protection is granted on the whole but when it comes to claiming right of exclusive use over a particular part in the trademark, a disclaimer may have to be put out that one claims no exclusive rights over the said element or elements of the mark that have been pronounced as unregistrable by the Registry, either on account of being a generic term, being common to the trade or generally being of a non-distinctive character. For example, a mark requiring Disclaimer was that of Cadbury Gems wherein the word ‘Gems’ was required to be disclaimed since it wasn’t a distinctive mark and could be used freely by others in the market.

• The Trademarks Act 1999 under Section 15 lays down that the proprietor seeking exclusive rights over a particular element of the mark may register the mark as a whole and the part thereof, as separate trademarks.

•  Section 17 states that the exclusive right over use of the trademark would be as a whole and to claim exclusive rights over parts/elements of the mark, the same has to be applied for separately. No exclusive rights vest in any part of the said mark if the particular element is common to trade, or of a non-distinct character.

• The Intellectual Property Appellate Board (IPAB) highlighted the importance of disclaimers in the case of Hindustan Unilever Limited(HUL) V. Girnar Exports, decided on 02.01.2012: HUL had applied for various variants of the mark BROOKE BOND RED LABEL, consisting of the main element BROOK BOND, RED LABEL as a by-line, red yellow color combination, descriptive words such as ‘Pure Indian Tea’ and the monogram ‘RL’. The same were opposed by one Girnar Exports, and the Registrar held that the words and color combinations were common to the trade and hence not distinctive. All the four appeals by HUL were dismissed by the IPAB. As requests were made by Registrar, HUL had at the time of registration added disclaimers, but it continued to file for registration of the words RED LABEL which were not distinctive and exclusive to it.

The mandatory need to use disclaimers was stressed upon in the aforementioned case.

Disclaimer clause in University Admission Bulletin

• Nikhil Agrawal V. The University of Delhi And Others.: The Delhi High Court on 01.05.2019 in W.P (C) 11940/2018, failed to take into account the reliance of the university on a disclaimer clause in its admission bulletin after the petitioner through writ petition sought admission and counselling in the post graduate  course he applied for and whose name did not appear in one of the consecutive admissions list declared by the university.

• The Petitioner had registered for admission to the PG programme M.A. Political Science conducted by the Delhi University for 2018-2019 academic session wherein total intake of 502 students was declared out of which 251 seats were to be filled on the basis of an entrance test and 251 seats as per merit in the Undergraduate programmes. Of the 251 seats to be filled on basis of entrance test, 127 seats were allotted to General Category.

• The Admission Bulletin issued for PG Courses contained a Disclaimer: “The University reserves the right to suitably modify, update or delete any part of the Bulletin without any prior notice.”

• Further, Further, Clause 1.8 i) iii. of the Admission Bulletin, read thus:

“Those Applicants, who do not report to the “Reporting Centre” within the scheduled time limit of the given “Admission list”, irrespective of the fact whether all other criteria of admission are fulfilled, shall NOT be considered for Admission in any of the subsequent lists.”

• The petitioner appeared for the entrance test and his name appeared at no.386 in the result. Subsequently the University notified the admission schedule for PG Admissions with the date of notifying the three Admission lists and the dates for verification of documents respectively. The name of the petitioner did not feature in any of the three admission lists.

• Another undated notice was issued by the University- “NOTICE- PG Admissions Last opportunity those students who were unable to report earlier. The candidates whose names appeared in the first, second or third admission lists for Admission to Postgraduate programmes for the academic year 2018-19, but who were unable to Report during the stipulated period of time at concerned Faculty/Department for verification of their documents, are now being given a last opportunity to seek admission subject to availability of seats in respective courses and categoriesSuch candidates will be considered during the fourth Admission List, provided the seats are vacant in the respective Department and category.”

• The name of the petitioner did not feature even in the Fourth Fifth and Sixth Admission lists issued by the University. Upon his query, it was informed to the Petitioner that the admission process stood closed. The Petitioner then filed an RTI application seeking information regarding seats for General Category still lying vacant, to which the University replied saying 16 seats were still vacant for the course.

• The petitioner then filed a writ petition under Section 226 of the Constitution contending the closing of admissions despite there being vacant seats. The admission took place upto the candidate who had secured 88^th rank, had the admission process not been brought to an end, the petitioner being the 92^nd rank holder could have been selected.

• The petitioner also contended that grant of second opportunity to candidates whose names featured in the first Three Admission lists to again report for admission, and inclusion of their names in Fourth, Fifth and Sixth Lists was starkly violative of the Clause 1.8 i) iii. Of the Admission Bulletin.

• The University sought to rely on the Disclaimer whereby the University reserved the right to modify, update or delete any part of the Bulletin without prior notice. Thereby allowing candidates whose names were on first Three lists and had not turned up for admission, a second opportunity to apply – impliedly amended or modified Clause 8.1 i) iii.

• The court held that:
  • the university modified Clause (iii) of Admission Bulletin, which expressly prohibited grant of a second chance to candidates who did not turn up, despite their names having been included in first three admission lists issued by the University. This modification was done by invoking the aforementioned “Disclaimer” Clause.
  • modification of the clause (III) was violative and hence the University could not seek protection by relying on the disclaimer clause to modify another clause by violating the same.
  • by elimination of ‘no show’ candidates from 4^th, 5^th and 6^th admission lists, petitioner would become eligible to be counseled and granted admission to the course.