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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Aqa Raza ¹, Ghayur Alam ²

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

Abstract

The Supreme Court of India (hereinafter, the Supreme Court) does not merely decide a lis in personam but also declares the law on a question that it decides to answer. The law so declared by the Supreme Court becomes binding in rem by virtue of Article 141 of the Constitution of India. Since the establishment of the Supreme Court, only three cases were decided in the 20 ^th century on The Patents Act, 1970 including one under The Patents and Designs Act, 1911, and in ²¹ st century only eleven cases have been decided under The Patents Act. Number of decisions per year is not even one. On an average, the Court has decided, 19 cases in a year; or one patent case in 1893.57 days, or in 5.18 years. Hence, only few questions of patent law have been answered. Many patent law questions still remain unanswered. This raises a two-fold problem. One, answers are not only too little but some of them are too ambiguous, too opaque and too vague. Two, absence of answer on certain basic points of patent law further heightens the problem of legal uncertainty and opacity. A review of decisions on the patent law reveals that: (i) the Court has declared patent law only in ten decisions; (ii) in no decision the validity of The Patents Act, 1970, was challenged; (iii) the Court has unanimously answered the questions of patent law; and (iv) only some of the questions of patent law have been answered by the Supreme Court unambiguously and unequivocally but some of the questions of patent law have been left open by the Court. This Paper identifies the intended and interpreted-constructed meaning of ‘Law Declared’ and seeks to cull out the principles of patent law as declared by the Supreme Court in the last 72 years.

Keywords

Patent, Supreme Court of India, Law Declared, the Indian Patents and Designs Act, 1911, the Patents Act, 1970, Bench, Article 141, Constitution of India, Intended Meaning, Constructed Meaning, Constituent Assembly Debate, Infringement, Revocation, License, Pre-grant Opposition, Exclusive Marketing Rights, Interpretation-Construction, Counter-Claims, Controller of Patents.

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Aqa Raza ¹, Ghayur Alam ², Mohammad Athar Talib ³

Affiliations
1 Jindal Global Law School, O.P. Jindal Global University, Sonipat — 131 001, Haryana, India., IN
2 National Law Institute University, Bhopal — 462 044, Madhya Pradesh, India., IN
3 Faculty of Law, Jamia Millia Islamia, New Delhi — 110 025, India., IN

Abstract

The law declared by the Supreme Court of India (Supreme Court) is the law of the land by virtue of Article 141 of the Constitution of India. When the Supreme Court decides a lis, it not only decide for the parties to the case but also declares the law on a question that it decides to answer. There are only twenty-four reported decisions delivered by the Supreme Court in the last 72 years on the copyright law. Number of decisions per year is not even one. On an average, the Supreme Court has decided. 33 case in a year; orone copyright case in 1104.58 days; or in 3.02 years. These decisions of the Supreme Court on the copyright law are just double of the number of decisions on the patent law. A review of decisions on copyright law from 28 January 1950 to 28 August 2022, reveals that: (i) only in 20 decisions, the Supreme Court has declared copyright law which include 4 decisions from 20 ^th century and 16 decisions from 21 ^st century; (ii) the validity of The Copyright Act, 1957, was not challenged in any decision;(iii) only one case from the decision of theHigh Court involving the constitutionality of Rule 29 (4) of The Copyright Rules, 2013 where the High Court re-drafted the Rule, reached to the Supreme Court and the Supreme Court held the re-drafting by the High Court as unwarranted and shown deference to the legislative wisdom; (iv) No Constitution Bench or Single Bench decision is reported; (v) no Chief Justice of India was on the bench in any copyright decision; (vi) only 4 judges authored their separate but concurring judgments (3 from 20 ^th century and 1 from 21 ^st century) and no dissenting judgment was delivered; (vii) the Court has unanimpously answered the questions of copyright law; and (viii) only someof the questions of copyright law have been answered unambiguously and unequivovally by the Supreme Court but some of the questions havebeen left open by the Court. This Paper seeks to cull out the principles of copyright law as declared by the Supreme Court in the last 72 years.

Keywords

Copyright Law, Supreme Court of India, Law Declared, the Constitution of India, Article 141, the Copyright Act, 1911, the Copyright Act, 1957, the Copyright Rules, 1958, the Copyright Rules, 2013, Principles, Bench, Infringement, Presumption of Constitutionality, Amendment, Copyright Board, Law-Making, Craftsmanship.

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Aqa Raza ¹, Ghayur Alam ²

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

Abstract

By virtue of Article 141 of the Constitution of India (hereinafter, the Constitution), the law declared by the Supreme Court of India (hereinafter, the Supreme Court) is the law of the land. The Supreme Court furtherance to its law-declaring power under Article 141 of the Constitution has declared design law only in three decisions. This Paper seeks to cull out the principles of design law declared by the Supreme Court in the last 72 years. There are only three reported decisions of the Supreme Court on the design law of which two are Division Bench decisions and one is Full Bench decision. Number of decisions per year is not even one. On an average, the Supreme Court has decided 4 cases in a year, or one design case in 8,836.66 days or in 24.21 years. Since the number of reported decisions is very less so only few questions of design law have been answered by the Supreme Court. A review of decisions of the Supreme Court on the design law reveals that: (i) unlike the patent and copyright decisions, the Supreme Court has declared the design law in all the three reported decisions; (ii) no case is reported in which the constitutionality of The Designs Act, 2000 was challenged; (iii) no Constitution Bench or Single Bench decision is reported; (iv) no Chief Justice of India was on the bench in any decision; (v) the Court has unanimously declared the design law; and (vi) no dissenting or concurring judgment is reported.

Keywords

Design Law, Supreme Court of India, Law Declared, Article141, the Constitution of India, the Designs Act, 1911, the Designs Act, 1957, Interpretation-Construction, Constructed Meaning, Principles, Bench, Decisions, Dissenting, Concurring, New, Original, Registration, Cancellation, Transfer of Suit, the Commercial Courts Act, 2015.

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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

The Parliament of India makes, amends, and unmakes law. The Supreme Court of India (hereinafter, the Supreme Court), under Article 141 of the Constitution of India, declares the law and makes and unmakes the law while deciding cases through the process of judicial review and interpretation-construction. The constitutional powers of these two branches are related but separate. The law made by the Parliament stands constitutionally valid unless declared uconstitutional, eviscerated or read down by the Supreme Court. As the analyses reveals,1 the constitutionality of none of the seven intellectual property (hereinafter, IP) enactments has been challenged before the Supreme Court in any of the cases brought before it. Had the constitutionality of these statutes been challenged even then the statutes are presumed to be constitutionally valid and the person who challenges the validity of the statute and any provision thereof has a heavy burden to discharge. The Supreme Court ordinarily interprets-constructs the provisions of the statute and applies the same to decide the question(s) of law and/or question of facts in a lis between the parties before it. The answer of the Supreme Court becomes binding not only in personam but also in rem for the future cases. Among all the IP cases decided by the Supreme Court, trademark law may be called as the King of IP decisions with maximum number of reported decisions followed by copyright, patent and design laws. The first trademark case was decided by the Supreme Court in the year 1953, after 1196 days (3.27 years) of its establishment. In 20^th century, the Supreme Court has decided a total of 19 cases on trademark law. On an average, the Supreme Court has decided .38 (point three eight) trademark case in a year; or one trademark case in 978.94 (point nine four) days or in 2.68 (point six eight) years. A review of reported decisions of 20th century reveals that the Court has: (i) declared Trademark Law in 15 decisions; (ii) not only interpreted the provisions of the statutes but has also constructed them; (iii) not declared anything on the constitutionality of the trademark statutes as no such question of constitutionality was involved; (iv) delivered all the decisions unanimously as no dissenting or concurring judgment is reported; (v) decided maximum number of cases by Full Bench (11) and remaining 8 decisions by Division Bench. It is also observed that two Chief Justices of India and one Acting Chief Justice were on the Bench in three decisions, but the judgment was authored only by the Acting Chief Justice. Paper proceeds with the same argument and method as developed and adopted in the first three papers covering patent law, copyright law and design law published under the theme "IP Laws Declared by the Supreme Court‟. This Paper seeks to cull out the principles of trademark law as declared by the Supreme Court in 20^th century decisions.

Keywords

Trademark, Supreme Court of India, Law Declared, Article 141, The Constitution of India, The Trade Marks Act, 1940, The Trade and Merchandise Marks Act 1958, The Trade Marks Act, 1999, Bench, Decisions, Dissenting, Concurring, Constructed Meaning, Principles, Interpretation-Construction, Twentieth Century, Unwary Purchaser, Trademark Trafficking, Trademark Infringement, Passing Off Action, Remedy.

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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

The Parliament of India makes, amends, and unmakes law. The Supreme Court of India (hereinafter, the Supreme Court), under Article 141 of the Constitution of India, declares the law and makes and unmakes the law. These constitutional powers of two branches are related but separate. The Supreme Court in the first decade of 21st century has delivered 23 decisions on the trademark law. On an average, the Supreme Court has decided 2.3 (point three) trademark cases in a year; or one trademark case in 158.82 (point eight two) days or in .43 (point four three) years. A review of reported 21st century decisions reveals that the Court has: (i) declared trademark law in 17 decisions; (ii) not only interpreted the provisions of the statutes but has also constructed them; (iii) not declared anything on the constitutionality of the trademark statutes as no such question of constitutionality was brought before it; (iv) delivered all the decisions unanimously as no dissenting or concurring judgment is reported; and (v) decided maximum number of cases by Division Bench (21) and remaining 2 cases by Full Bench. It is also observed that no sitting or acting Chief Justices of India was on the Bench in any of the cases. Paper proceeds with the same argument and method as developed in the first four papers on patent law, copyright law, design law and trademark law in twentieth-century published under the theme ‘IP Laws Declared by the Supreme Court’. This Paper seeks to cull out the principles of trademark law as declared by the Supreme Court in the first decade of the twenty-first century.

Keywords

Trademark, Supreme Court of India, Law Declared, Article 141, The Constitution of India, The Trade Marks Act, 1940, The Trade and Merchandise Marks Act, 1958, The Trade Marks Act, 1999, Decisions, Constructed Meaning, Principles, Bench, Unanimous, Concurr

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Ghayur Alam ¹, Aqa Raza ²

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

Abstract

The Parliament of India amends and makes and unmakes the law. The Supreme Court of India (hereinafter, the Supreme Court), does not merely decide a lis in personam but also declares the law on a question that it decides to answer. The law so declared by the Supreme Court becomes binding in rem by virtue of Article 141 of the Constitution of India (hereinafter, the Constitution). The Supreme Court, by virtue of Article 141 of the Constitution, declares the law and makes and unmakes the law while deciding cases through the process of judicial review and interpretation-construction. In the second and third decades of twenty-first century, the Supreme Court has, on an average, decided 1.86 (point eight six) cases in a year, or one trademark case in 196.07 (point zero seven) days, or one case in .53 (point five three) year. A review of the reported decisions on the Trade Marks Act, 1999 (hereinafter, the Trade Marks Act) reveals that the Supreme Court has: (i) delivered a total of 27 decisions including a few decisions in which the Trade Marks Act finds only a reference; (ii) declared trademark law and iron out the creases of law by interpreting the text of the statutes; (iii) not declared anything on the constitutionality of the trademark statutes as no such question of constitutionality was brought before it; (iv) delivered all the decisions unanimously as no dissenting or concurring judgment is reported; (v) decided maximum number of cases by Division Bench (21 cases) constituting 77.77 (point seven seven) percent, followed by Full Bench (5 cases) constituting 18.51 (point five one) percent, and 1 by Single Bench constituting 3.7 (point seven) percent; and (vi) decided only one trademark case by a Single Bench which is reported from the third decade of this century. A total of 39 judges were on the bench deciding the 27 trademark cases. It has been observed that no sitting Chief Justice of India was on the bench in any of the trademark cases. Paper proceeds with the same argument and method as developed and adopted in the papers covering patent law, copyright law, design law and trademark law in twentieth and twenty-first centuries published under the theme„IP Laws Declared by the Supreme Court). This Paper seeks to cull out the principles of trademark law declared by the Supreme Court in the second and third decades of the twenty-first century.

Keywords

Trademark, Supreme Court of India, Law Declared, Article 141, The Constitution of India, The Trade Marks Act 1940, The Trade and Merchandise Marks Act, 1958, The Trade Marks Act, 1999, Bench, Decisions, Dissenting, Concurring, Constructed Meaning, Princip

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