This paper seeks to cull out the principles of trademark law as declared by the Supreme Court in its 20th century decisions.
Aqa Raza, Assistant Lecturer, Jindal Global Law School, O.P. Jindal Global University, Sonipat, Haryana, India.
Ghayur Alam, Professor, National Law Institute University, Bhopal, Madhya Pradesh.
If the Parliament (un)makes law, the Supreme Court of India (Supreme Court) declares law. Both the powers of the both the branches are constitutional powers. Unless the law made by the Parliament is declared uconstitutional by the Supreme Court, the law stands valid. The irony with the intellectual property (IP) legislations so far, as the analysis reveals,1 is that their constitutionality has not been challenged before the Supreme Court in any of the cases.
Even if the constitutionality of the statute is not challenged—presumption of constitutionality applies—the Supreme Court applies the principles and provisions of the statute and interprets-constructs the provisions of the statute to decide the question(s) of law in a lis between the parties before it. When the Supreme Court answers such questions, they become binding in rem not only between the parties to the lis but also for the furture cases.
This binding effect of the law declared by the Supreme Court is by the virtue of Article 141 of the Constitution of India. Among all the IP cases, trademark law emerges as the Queen of IP decisions with the 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) after it came into being. In 20th century, the Supreme Court has delivered a total of 19 decisions on the trademark law. On an average, the Supreme Court has decided .38 trademark case in a year; or one trademark case in 978.94 days or in 2.68 years. A review of reported 20th century reveals that: (i) Court has declared trademark law in 15 decisions; (ii) Court has not only interpreted the provisions of the statutes but has also constructed them; (iii) Court did not declare anything on the constitutionality of the trademark statutes as no such question of constitutionality was involved; (iv) Court delivered all the decisions unanimously as no dissenting or concurring judgment is reported; (v) maximum number of reported decisions are Full Bench (11) and remaining 8 decisions are Division Bench; and (vi) 2 Chief Justices of India (CJIs) and 1 Acting Chief Justice were on the Bench in 3 decisions, but the the judgment was authored actively only by the Acting Chief Justice giving a reason to write “2 ‘sitting’ CJIs sitting in 2 matters, 1 Acting CJI in 1 matter but ‘Acting’ actively”.
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”. But this Paper covers the trademark law and seeks to cull out the principles of trademark law as declared by the Supreme Court in its 20th century decisions.
Published in: Journal of Intellectual Property Rights (JIPR)
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