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Aqa Raza ¹

Affiliations
1 Jindal Global Law School (JGLS), O.P. Jindal Global University, Sonipat-131001, Haryana,, IN

Abstract

This Paper seeks to examine the theoretical underpinnings, as discovered or constructed by the Supreme Court of Indiain the last 70 years, as to „why‟ of two distinct copyrights envisaged by The Copyright Act, 1957 and The Designs Act, 2000. An analysis ofdecisions of the Supreme Court reveals that: (i) in none of the cases validity of either of two copyrights was challenged; (ii) both Labour and Utilitarian Theories, and not any other theory, have been simultaneously used to justify „why‟ of two distinct copyrights; (iii) inherent differences between these theoretical frameworks have been neglected; (iv)deployment of these two theories appear to be more mechanical than reasoned for logic of tangible subject matter hasbeen unhesitatingly extended to intangible subject matter of two copyrights; and (v) judicial ratiocination does not transcendLabour-Utilitarian Framework except in one judicial opinion which highlights the Un-Indian features of Copyright Law butexercises judicial restraints to invoke it. It has been argued once thatthese theories were invoked, it had been expected thatthe Court would apply judicial standards to rigorously scrutinize theoretical underpinning of two copyrights from allpossible angles. Decisions of the Supreme Court nonetheless provide an insight into theoretical underpinnings of twocopyrights.

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Aqa Raza ¹

Affiliations
1 Jindal Global Law School, O.P. Jindal Global University, Sonipat, Haryana — 131 001,, IN

Abstract

This Paper seeks to examine the theoretical underpinnings of The Patents Act, 1970 (Patents Act), as constructed by the Supreme Court of India (Supreme Court) in the last 71 years. An analysis of decisions of the Supreme Court reveals that: (i) in none of the cases, validity of The Patents Act was challenged; (ii) unlike the decisions on copyright and design laws where the Court invoked both Labour and Utilitarian frameworks as supplementary and complimentary to each other to justify the ‘why’ of two distinct copyrights envisaged by The Copyright Act, 1957 and The Designs Act, 2000, the Court in patent cases has used only Utilitarian Theory; (iii) Court has not ignored Natural Right and Labour theories as in its opinion Natural Right justification is only a means to achieve the end of social good; (iv) in the opinion of the Court, both ‘sense’ and ‘nonsense’ of Bentham may coexist as means and end; and (v) protection of patent rewards labour put in by the inventor and in exchange provides invention and knowledge to the society. Paper argues that the Court should have applied judicially manageable standards to rigorously scrutinize the theoretical underpinnings of Patent Law from all possible angles.

Keywords

Utilitarian Theory, The Patents Act, 1970, Theoretical Underpinning, Supreme Court of India, Ratiocination, Intellectual Property, Labour Theory, Natural Right Theory, Publici Juris, Society, Scientific Research, Nonsense on Stilts, Industrial Progress, Invention, Discovery, Patent System, Common Law, Utility.

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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

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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Kanika Malik ¹, Aqa Raza ²

Affiliations
1 CSIR–National Institute of Science, Communication and Policy Research (CSIR–NIScPR), New Delhi — 110 012, India., IN
2 Jindal Global Law School, O.P. Jindal Global University, Sonipat — 131 001, Haryana, India., IN

Abstract

This paper seeks to review the articles published in the Journal of Intellectual Property Rights (JIPR) in the last decade of the twentieth century from Volume 1(1) (1996) to Volume 4(6) (1999). There are seven intellectual property (IP) statutes in force in India. When JIPR published its first Volume in the year 1996, only two IP statutes, legislated and enacted in post-independent India, were in force, namely: (i) The CopyrightAct, 1957; and (ii) The Patents Act, 1970 — enacted after 10 years and 23 years respectively after the independence of the country. Nevertheless, the Imperial Act on designs was also in force by the virtue of Article 372 of the Constitution of India, until the Indian Parliament enacted a separate statute on designs. Two statutes were enacted in 1999 and the other three statutes were enacted in the first decade of the 21 ^st century but some of them took a time of almost a decade to come into force. For convenience, the papers published in JIPR have been reviewed year-wise. Paper attempts to identify the: (i) total number of issues published; (ii) total number of articles published; (iii)total number of contributions made by the Indian and foreign scholars;(iv) total number of sole and joint publications; (v) publishing style of JIPR; and (vi) area of IP covered in the publications. JIPR since its inception has aimed to fill void in the IP literature in general and the Indian IP literature in particular. Paper develops an argument that JIPR has significantly contributed in the dissemination of IP information and knowledge, and also in creating IP knowledge and awareness by publishing quality research articles on an open access platform.

Keywords

JIPR, IP Statutes, Scholars, CSIR-NIScPR, CSIR-NISCAIR, IP Awareness, Articles, Copyright, Patents, Trade Marks, Geographical Indications, Trade Secrets, Industrial Design, Design,Integrated Circuit, Plant Varieties, TRIPS, WIPO, GATT, Treaties, Agreement, Research, Development, Review, IP Publications, Publici Juris, Dissemination of Knowledge, Creation of New Knowledge, Twentieth-Century.

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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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Kanika Malik ¹, Aqa Raza ²

Affiliations
1 CSIR–National Institute of Science, Communication and Policy Research(CSIR–NIScPR), New Delhi, 110 012, India., IN
2 Jindal Global Law School, O.P. Jindal Global University, Sonipat, 131 001, Haryana, India., IN

Abstract

This Paper seeks to review the articles published in the Journal of Intellectual Property Rights (JIPR) in the first half of the first decade of the twenty-first century from Volume 5 (1) (2000) to Volume 9 (6) (2004). During this period, a total of seven post-independent IP legislations were enacted in the country. This Paper reviews the articles published in JIPR year-wise. Paper attempts to identify: (i) total number of issues published; (ii) total number of articles published; (iii) total number of contributions made by the Indian and foreign scholars; (iv) total number of sole and joint publications; (v) publishing style of JIPR; and (vi) area of IP covered in each volume. Dissemination of information is a necessary condition for creation of new knowledge. JIPR through an open-access platform has provided an opportunity to the IP scholars to publish their writings addressing the gaps in the areas ofIP. In the end, Paper develops an argument that JIPR has significantly contributed in the development of IP by disseminating IP information and knowledge and also in creating IP knowledge and awareness.

Keywords

JIPR, IP Statutes, CSIR-NIScPR, CSIR-NISCAIR, IP Awareness, Articles, Copyright, Patents, Trade Marks, Geographical Indications, Trade Secrets, Industrial Design, Design, Integrated Circuit,Plant Varieties, TRIPS, WIPO, GATT, Treaties, Agreement, TKDL, Research, Development, Review, IP Publications, Publici Juris, Dissemination of Knowledge, Creation of New Knowledge, First Decade, 21 st Century.

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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, Kanika Malik ²

Affiliations
1 Jindal Global Law School, O.P. Jindal Global University, Sonipat- 131 001, Haryana, India., IN
2 CSIR–National Institute of Science, Communication and Policy Research(CSIR-NIScPR), New Delhi- 110012, India., IN

Abstract

This Paper seeks to review the articles published in the Journal of Intellectual Property Rights (JIPR) in the second half of the first decade of the twenty-first century from Volume 10 (1) (2005) to Volume 14 (6) (2009). During this period, a total of seven post-independent enacted IP legislations were in force in the country. This Paper seeks to review the articles published in JIPR year-wise during the decade. Paper attempts to identify: (i) total number of issues published; (ii) total number of articles published; (iii) total number of contributions made by the Indian and foreign scholars; (iv) total number of sole and joint publications; (v) publishing style of JIPR; and (vi) areas of IP covered in each volume. A review ofarticles published during this period reveals that on an average, a total of 44 articles have been published in each volume. In the total articles published between 1996–2009, the articles published during the second half of the first decade of 21 ^st century constitutes 52 percent (220 articles) compared to 31.20 percent published between 2000–2004 (132 articles)and 16.78 percent between 1996–1999 (71 papers). JIPR through an open-access platform has provided an opportunity tothe IP scholars to publish their writings addressing the gaps in the areas of IP. In the end, Paper develops an argument that JIPR has significantly contributed in the development of IP by disseminating IP information and knowledge, and also in creating IP knowledge and awareness.

Keywords

JIPR, IP statutes, Scholars, CSIR-NIScPR, CSIR-NISCAIR, IP Awareness, Articles, Copyright, Patents, Trade Marks, Geographical Indications, Trade Secrets, Industrial Design, Design, Integrated Circuit, Plant Varieties, TRIPS, WIPO, GATT, IPRs, Treaties, Agreement, Research, Case Law Development, Amendments, Review, IP Publications, Publici Juris, Dissemination of Knowledge, Creation of New Knowledge, First Decade, Twenty-first Century.

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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, Kanika Malik ²

Affiliations
1 Jindal Global Law School, O.P. Jindal Global University, Sonipat — 131 001, Haryana, IN
2 Council of Scientific & Industrial Research-National Institute of Science Communication and Policy Research (CSIR–NIScPR), New Delhi — 110 012, IN

Abstract

This Paper seeks to review the articles published in the Journal of Intellectual Property Rights (JIPR) in the first half of the second decade of the twenty-first century from Volume 15 (1) (2010) to Volume 19 (6) (2014). This is the fourth paper on the theme ‘JIPR in IPR Research’ and proceeds with the same argument and method as developed and used in the previous three papers published on the theme ‘JIPR in IPR Research’. In this decade, two Special Issues on the themes ‘IPR and Agriculture’ and ‘Leveraging IP for Business Advantage’ were published with their separate guest editors. Compared to the previous decades, the articles published between 2010–2014 are maximum. Out of the total articles published between 1996–2014, the number of articles (251) published in this decade between 2010–2014 constitute 37.24 (point two four) compared to 32.64 (point six four) percent in 2005–2009, 19.58 (point five eight) percent in 2000–2004 and 10.53 (point five three) in 1996–1999.

Keywords

JIPR, IP Statutes, Scholars, CSIR-NIScPR, CSIR-NISCAIR, IP Awareness, Articles, Copyright, Patents, Trade Marks, Geographical Indications, Trade Secrets, Industrial Design, Design, Integrated Circuit, Plant Varieties, TRIPS, WIPO, GATT, IPRs, Treaties, Agreement, Research, Case Law Development, Internet Service Provider, Amendments, Review, Handicrafts, Counterfeit Drugs, IP Publications, Dissemination of Knowledge, Creation of New Knowledge, Second Decade, Twenty-First Century.

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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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Aqa Raza ¹, Kanika Malik ²

Affiliations
1 Jindal Global Law School, O.P. Jindal Global University, Sonipat — 131 001, Haryana, IN
2 Council for Scientific & Industrial Research–National Institute of Science, Communication and Policy Research (CSIR–NIScPR), New Delhi - 110 012, IN

Abstract

This Paper seeks to review the articles published in the Journal of Intellectual Property Rights (JIPR) in the second half of the second decade of the twenty-first century from Volume 20 (1) (2015) to Volume 24 (6) (2019). This is the fifth paper on the theme 'JIPR in IPR Research‘ and proceeds with the same method and arguments as adopted and developed in the previous four papers published on the theme. In this decade, a total of 144 articles were published including one Special Issue on the theme 'New Technologies, Climate Change and IPR‘. These 144 articles were published in 30 issues of 5 volumes. JIPR in this decade published 6 regular issues in Volumes 20 (2015) and 22 (2017). Whereas, the Issues 4 and 5 of Volume 21 (2016); Issues 2 and 3, and 4 and 5 of Volume 23 (2018); and Issues (1) and (2), (3) and (4), and (5) and (6) of Volume 24 (2019) were published jointly. Out of total articles published in JIPR till Volume 24, the number of articles published in this decade (144) constitutes 17.60 (point six zero) percent, and the contribution of this decade (2015–2019) is 19.27 (point two seven) percent.

Keywords

JIPR, IP Statutes, Scholars, CSIR-NIScPR, CSIR-NISCAIR, IP Awareness, Articles, Copyright, Patents, Trade marks, Geographical Indications, Trade Secrets, Industrial Design, Design, Integrated Circuit, Plant Varieties, TRIPS, WIPO, IPRs, Treaties, A

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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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Aqa Raza ¹, Kanika Malik ²

Affiliations
1 Jindal Global Law School, O.P. Jindal Global University, Sonipat - 131 001, Haryana, IN
2 CSIR–National Institute of Science, Communication and Policy Research (CSIR–NIScPR), New Delhi - 110 012, IN

Abstract

This Paper seeks to review the articles published in the Journal of Intellectual Property Rights (hereinafter, JIPR) in the third decade of the twenty-first century from Volume 25 (1) (2020) to Volume 28 (5) (2023). In this decade, five new series on different themes of intellectual property rights (hereinafter, IPRs) were started by JIPR which include ‗IP & Taxation Policy‘, ‗Theoretical Underpinnings of IP Laws‘, ‗Standard Essential Patents‘, ‗IP Laws Declared by the Supreme Court‘, and ‗JIPR in IPR Research‘. In this decade, a total of 139 articles were published covering different areas of IPRs. The articles published in this decade constitute 14.52 (point five two) percent of the total articles published in JIPR till Volume 28 (5) (2023). In terms of percentage of the articles published in each decade, this decade with 14.52 (point five two) percent comes fourth after the decades 2010–2014 with 26.22 percent, 2005–2009 with 22.98 percent, and 2015–2019 with 15.04 percent. This is the sixth paper on the theme ‗JIPR in IPR Research‘ and proceeds with the same argument and method as developed and adopted in the First Paper1 and the sequel papers published under the theme.

Keywords

JIPR, IP Statutes, Scholars, CSIR-NIScPR, CSIR-NISCAIR, IP Awareness, Articles, Copyright, Patents, Trade Marks, Geographical Indications, Trade Secrets, Industrial Design, Design, Plant Varieties, TRIPS, WIPO, Intellectual Property Rights, IPR Res

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Abhinav Gupta ¹, Aqa Raza ²

Affiliations
1 Dr. Ambedkar Government Law College, Kalapet - 605 014, Puducherry, IN
2 Jindal Global Law School, O.P. Jindal Global University, Sonipat - 131 001, Haryana, IN

Abstract

This Paper seeks to critically analyze and evaluate the concept of compulsory licensing under the Indian Patents and Designs Act, 1911, and the Patents Act, 1970. The Paper further: (i) traces its evolution from the French Patent Law of 1791 to the amendment of the TRIPS Agreement in 2017 that introduced Article 31bis; (ii) analyzes the detailed procedure and consideration for the grant of compulsory license in India; and (iii) in the light of Natcov Bayer decision, discusses the rejection of the compulsory license applications on the grounds of procedural non-compliance. In the end, paper develops an argument that the provisions relating to compulsory license under the Indian patent regulatory framework have remained a dead letter during COVID-19 pandemic at the cost of public health and welfare.

Keywords

Patent, Compulsory License, TRIPS, Article 31bis, Conventions, Doha Declaration, Labour Theory, Utilitarian Theory, The Patents and Designs Act, 1911,Bakshi Tek Chand Committee, N Rajagopa Ayyangar Committee, The Patents Act, 1970, Controller of Patents,

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