Arpan Banerjee

Spill-over reputation in passing off actions: Indian and english law compared

The tort of passing off is typically ‘used as a second string’ to an action for trade mark infringement.1 However, the tort also offers plaintiffs ‘a flexibility that makes it attractive in situations not covered by the statutory regimes’.2 Of these situations, at least two are significant. First, trade mark statutes do not permit suits for the infringement of unregistered marks, but permit suits for passing off.3 Thus, a trader who owns an unregistered mark can prevent competitors from using it through a passing off action. Second, the tort of passing off aims to prevent misrepresentations against badges of goodwill. This makes the tort broader than an action for trade mark infringement, in terms of the scope of subject matter protected. As Parker LJ had observed, ‘cases of misrepresentation by the use of a mark, name or get-up do not exhaust all possible cases of misrepresentation’ in a passing off action.4 One can only register—and, subsequently allege the infringement of—‘a sign capable of being represented graphically’.5 Further, the sign must be ‘clear, precise, self-contained, easily accessible, intelligible, durable and objective’.6 On the other hand, the ‘extended’

The Law and Politics of Pharmaceutical Patents in India

The philosophical and historical roots of IPRs have been traced back to late medieval and enlightenment-era Europe. In the modern era, English courts have protected IP by applying “with almost evangelical fervour…the commandment ‘thou shalt not steal’,” while neoclassical economists have viewed IP as an incentive to investment. However, numerous scholars have taken a contrary view. Frequently, critical narratives on IPRs have been framed in terms of a conflict between developing countries and developed countries. Even the World Bank, while endorsing the view that IPRs can help developing countries attract foreign investment, has cautioned that “[t]ighter IPRs can…disadvantage developing countries in two ways: by increasing the knowledge gap and by shifting bargaining power toward the producers of knowledge, most of whom reside in industrial countries.”

Assessing the track record of India's film certification appellate tribunal

In India, the Film Certification Appellate Tribunal (FCAT) was set up as a forum where filmmakers could challenge decisions of the state-run Central Board of Film Certification (CBFC). The FCAT was established to address concerns about rigid censorship by the CBFC. In this article, the author examines some of the FCATs noteworthy judgements over the past decade. The author argues that the FCATs track record in upholding creative freedom has not been very satisfactory. The FCAT has only slightly liberalised the parameters for censoring content. Nevertheless, the establishment of the FCAT should still be considered a positive development for the film industry, with potential for improvement.