Theoretical Underpinnings of Trademark Law: Decisions of the Supreme Court of India

Raza, Aqa ; Alam, Dr. Ghayur


This Paper identifies and analyses the theoretical underpinnings of trademark law in the light of decisions of the Supreme Court of India (Court). Outcome of analysis is four-fold. One, only the Utilitarian Theory has 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.


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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