Journal of Intellectual Property Rights

Aqa Raza ¹, Ghayur Alam ²

Affiliations
1 Jindal Global Law School, O.P. Jindal Global University, Sonipat — 131 001, Haryana,, IN
2 National Law Institute University, Bhopal — 462 044, Madhya Pradesh,, IN

Abstract

This Paper identifies and analyses the theoretical underpinnings of trademark law in the light of decisions of the Supreme Court of India (here in after, the Court). Outcome of analysis is four-fold. One, only the Utilitarian Theoryhas been invoked by the Court and that too not explicitly but only by implication to justify trademark law. Two, judicial ratiocination mainly hinges on two grounds that trademark law maximizes happiness by directing unwary customer to the source of goods or services, and minimizes the pain of unwary customer by protecting her from actual or likely deception or confusion as to the source of goods or services. Three, protection of exclusive right of trademark holder in the trademark is merely a means necessary to promote social good in general and interest of unwary customer in particular. Four, judicial invocation of publici juris is designed to pre-empt tragedy of commons. At the end, Paper develops an argument that the Court should have applied judicially manageable standards to rigorously scrutinize theoretical underpinnings of trademark law.

Keywords

Utilitarian Theory, Publici Juris, The Trade Marks Act, 1999, Theoretical Underpinnings, Supreme Court of India, Ratiocination, Intellectual Property, Common Law, Equity, Consimili Casu, Unwary Purchaser, Consumer Welfare, Trademark Monopoly, Trademark Trafficking, Public Policy, Commercial Morality, Trademark Infringement, Passing Off Action.

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Aqa Raza ¹, Ghayur Alam ²

Affiliations
1 Jindal Global Law School, O.P. Jindal Global University, Sonipat — 131001, Haryana,, IN
2 National Law Institute University, Bhopal — 462 044, Madhya Pradesh, IN

Abstract

This Paper seeks to build upon the method and findings of ‘Theoretical Underpinnings of Copyright and Design Laws: Decisions of the Supreme Court of India’1 with a view to examine the theoretical underpinnings of copyright law post Krishika Lulla2 and design law post Godrej Sara Lee3 as discovered or constructed in the decisions of the Supreme Court of India (Supreme Court). An analysis of the reported decisions on copyright law reveals that: (i) validity of The Copyright Actor of any provisions of the Act was not in question in any of the decisions; (ii) constitutional validity of Rule 29 (4) of The Copyright Rules, 2013 was in question in one of the decisions in which the Supreme Court showing deference to the legislative wisdom reversed the decision of the High Court on the ground that the High Court has overreached its remit and has re-drafted the rule; (iii) both Labour and Utilitarian Theories, and not any other theory, have been simultaneously invoked by the Supreme Court; and (iv) on an average, the Court has decided 1.66 copyright cases in a year; or one copyright case in 251 days, or in .68 (point six eight) years. It appears that the Supreme Court was invoking both Labour and Utilitarian Theories mechanically without going into the clear differences between the two. It has been previously4 argued that the Court should have applied judicially manageable standards to rigorously scrutinize the theoretical underpinnings of copyright law from all possible angles. This Paper reiterates this argument for nothing seems to have changed in the judicial approach when it comes to theoretical underpinnings of copyright law. An analysis of decisions on design law reveals that: (i) only one decision has been reported on design law and the Court has not gone into the question of theoretical underpinnings; (ii) in four decisions there is only a reference to The Designs Act but these decisions have not decided any question of design law; and (iii) on an average, the Court has decided .08 (point zero eight) design cases in a year; or one design case in 4,595 days, or in12.58 years.

Keywords

Labour Theory, Utilitarian Theory, Natural Right Theory, The Copyright Act, 1957, The Copyright Rules 1958, The Copyright Rules 2013, The Designs Act, 2000, per Incuriam, Theoretical Underpinnings, The Constitution Of India, Article 145(3), Supreme Court Of India, Presumption Of Constitutionality, Social Planning Theory, Ratiocination, Intellectual Property, Publici Juris, Draftsmanship, Craftsmanship, Amendment, Exclusive Right, Negative Right.

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