This article is written by Aparna Sajeev.
“The first and fundamental rule in the interpretation of all instruments is to construe them according to the sense of terms, and the intention of the parties”- Joseph Story
Originalism is one of the theories of constitutional interpretation which advocates that, the interpretation of the constitutional texts should be in accordance with the intention of the legislature while framing the texts. Thus, all interpretation should be in lines with the meaning accorded to it originally. However, this does not mean that the constitutional texts can never be changed, but it means that interpretations should not stray away from the original meaning of the texts. The originalists do not protect the “letter of law” but they protect the “spirit of law”.
The interpretation of the constitution by originalists, contrary to popular belief, may not be narrow. An originalist would argue that ‘ban on torture’ includes ‘ban of solitary confinement’ by expanding the scope of interpretation. The argument may also involve the intention of the legislation. If the legislation envisaged a rehabilitative approach of punishment, such punishments of deterrent character will not be upheld.
Even though, originalist interpretation might seem to be intuitive and logical, it is not free from criticisms. Scalia in his theory of “textualism” criticizes originalism as meaning of laws may be misunderstood if words alone are referred to. It is not necessary that words of law and the intent the legislation perfectly supplement each other.
India therefore follows an inclusive originalism. Under inclusive originalism, the text of the constitution is of utmost importance. However, other means of interpretations can be adopted given that they do not extend beyond the original meaning under the constitution. Thus, courts can look into precedents, customs, practices etc for interpretation of law. Inclusive originalism is the opposite of exclusive originalism. Exclusive originalism is considered as the purest form of originalism as it allows the judges to look, only, at the original meaning of the constitution and cannot refer any other sources of law.
In India, inclusive originalism was seen for the first time in the case of AK Gopalan vs State of Madras. In this case, the interpretation of constitution was given a liberal approach when the court rejected the idea of interpreting the constitution “ in the spirit of constitutions”. With dynamism in laws such as Cyber laws, Intellectual property law, exclusive originalism came insufficient. Trademark law is one of the leading subset of IPR where time and again it is proven that India needs the inclusive originalism for interpretation. Trademark Act,1999 gives an exhaustive list for refusal of trademark under section 9 and 11. However, exclusive/ positivist originalistic theory will not work for trademark law interpretation as new problems surface in the trademark regime because of technological developments. Inclusive originalism is more capable of catering to the contemporary needs of the society. Hence India has adopted inclusive originalism for trademark law. Section 11 of the Trademark Act, 1999 gives relative grounds of refusal. Under this, the following are the relative grounds on the basis of which registration can be refused:
- It is identical or similar to an earlier trademark.
- It is identical to an earlier trademark and there is a similarity of goods and services between the two marks.
- It is similar to an earlier trademark and the goods and services covered by both trademarks are identical or similar, capable of causing confusion in pubic and association with earlier trademark.
- It is similar to a well- known trademark and thereby capable of causing unfair. advantage, or be detrimental to the reputation of well-known trademark.
- It is prevented by laws of passing off or law of copy right.
There are certain defences or exceptions given under the same section. Registration of trademark will not be refused by the registrar, if the proprietor of earlier trademark consents to register the mark in special circumstances such as:
- The trademark application has a date of application earlier than trademark in question.
- Trademark is entitled to protection of well-known trademark.
- Grounds regarding deceptive similarity and identity and laws preventing registration such as passing off and copyright won’t be applicable if those objections are not raised in opposition proceedings.
The terms identical, similar or distinctive have not been defined in the Trademark Act,1999. Hence, the judges interpret the words as according to the needs of society. In a positivist originalist approach, there will be a strict interpretation of the terms not going beyond the original meaning as given during the conception of the act.
The courts have recognised some criteria to adjudicate the cases involving similarity such as visual and phonetic similarity, goodwill and reputation, test of likelihood and test of deceptive similarity. India therefore allows the judges to go beyond the text of legislation and device new interpretations suitable for the case at hand. In the case of Cadila Health Care v Cadila Pharmaceutical Ltd, the supreme court redefined the criteria of similarity of trademarks and similarity of goods and services. The court identified the following criteria to decide whether there is a passing off:
- The nature of both trademarks
- The resemblance between the trademarks
- The goods and services for which the marks are used
- The nature, performance and goods of similar trademarks of their rival traders
- The class of buyers of their goods and services
- The mode of purchasing
- Other relevant circumstances
The original meaning of the legislation is limited to identity of marks or similarity to goods and services or similarity of marks and identity or similarity of goods and services. However the court added the above criteria to give a broader interpretation of the provision.
In the case of SM Dyechan Ltd vs Cadbury India Ltd, the plaintiff had a business of chips and wafers under the trademark PIKNIK. Defendant later started business of chocolates under the trademark PICNIC. The court held that they are not deceptively similar as they differ in appearance and composition of words.In this case too, we can see a liberal interpretation of the word similar.
In another case of M/s Allied Blenders and Distillers Pvt. Ltd v Govind Yadav & Anr., Plaintiff claimed that the mark “ Fauji” is deceptively similar to their mark “Officer’s Choice”. The plaintiff contended that the word “Fauji” was a translation of the word Military officer. They also contended that the class of goods are same as both parties sold alcoholic beverages. The packaging of both products were also similar to an extent. However the court held that there is no deceptive similarity even though the trade dress appeared similar. Trademarks are growing in great numbers in this pro- capitalist world and it is difficult to find distinctiveness in every trademark and hence judges are more liberal while interpreting deceptive similarity.
The court in the case Godfrey Philllips India ltd vs GIRNAR Foods ad Bevrages Pvt. Ltdheld that generic words cannot be trademarked. However generic words or descriptive word when they acquire distinctiveness or some secondary meaning can be given trademark. For e.g. Apple is a generic word, but because it is used for electronic items such as phones, tablets and laptop, it acquired distinctiveness. The trademark law is evolving and it is possible only because there is no restriction of scope of interpretation of the provisions as long as they are fair and in tandem with the principle of natural justice.
In the case of J.L Mehta vs Registrar of Trademarks, the trademark, “ SULEKHA” was rejected because it was a descriptive word meaning a person with beautiful handwriting. The court held that since the products under SULEKHA were fountain pens, it was a valid trademark. The court held that common or descriptive words can be trademarked if the classes of goods they are used for is different. The standard of distinctiveness in trademark is becoming more liberal keeping in mind the surge of new businesses in India.
Thus India has been adopted inclusive originalism as the method of interpretation. It is certainly a positive step considering the advancement of the society. With globalization and technological advancements, it is not possible to stick to the meaning intended by our forefathers. Indian Trademark law took shape in 1940 but the Trademark Act,1999 Act stood the test of time. However, the original interpretations of the Act meant by the legislation in 1999 are insufficient to suit the current needs. Inclusive originalism allows the court to interpret laws for the changing needs of the society.
Originalist theory has been used by the Indian Courts since the case of A.K Gopalan vs Union of India However, originalist theory in the strictest sense, i.e. positivistic originalism, seem to have lost its value due to the evolution of society and their modern age problems. The theory of living constitutionalism gained momentum replacing the originalistic theory in the constitutional regime. In response to this, the theory of originalism itself underwent changes. The defects of being ruled by ghost hands were pointed out by the critics. The theory of originalism therefore changed to new originalism where the subjective interpretation of the constitution is taken into consideration and not the original meaning intended by the founders. However, this new theory was also subjected to criticism of subjectivity an lack of authority. Thus, a middle path compatible with the modern day Indian society was required. Hence courts adopted inclusive originalism. The courts interpretations using originalism can be traced extensively in trademark regime. In the past, courts have stuck to the positivist approach of originalism with respect to Section 9 of Trademarks Act, 1999 which deals with absolute grounds of refusal of registration. However, normative approach of originalism is also adopted by courts nowadays, especially with respect to relative grounds of refusal of registration under Section 11 of the Act.
Section 9 of the Act gives the following grounds for refusal of registration which are absolute in nature:
- The trademarks which do not have any distinctiveness and unable to distinguish their good or services from others.
- A mark which consist of exclusively of those marks or indications which are used in trade to designate the kind, quality, quantity, intended purpose, values, geographical origin or time of production of goods or rendering of service.
- A mark that consists of such marks or indications which have become customary.
- If the mark can deceive the public or cause confusion.
- If the mark contains such elements which may hurt the religious susceptibilities of any person or section of people in India.
- It contains obscene or scandalous substance.
- If the use of marks is prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950.
- The shape of the goods cannot be trademarked if it is the result of nature of goods itself.
- The shape of goods cannot be trademarked if the shape is necessary for a technical result.
- The shape of goods cannot be trademarked if the shapes add substantial value to the goods.
In several cases, the court have followed the positivist approach of originalism and has taken the literal and original meaning of the provisions to decide the cases. In one such case of Mahendra and Mahendra Paper Mills Ltd. v. Mahindra and Mahindra Ltd, the issue of deceptive similarity came up between two marks i.e. “Mahendra and Mahendra” and “Mahindra and Mahindra”. The court held that the marks are deceptively similar.
Here the court followed the original meaning of the word similarity as they are indeed similar. However, under a normative approach, a liberal interpretation is possible as they belong to different business sectors and there would not have been much likelihood of confusion.
In another landmark case, of Parle Products (P) Ltd v JP & CO. Mysore, The court dealt with deceptive similarity in detail. The court relied on the size of the packet, colour scheme and close resemblance. The court held that even though the wrappers are not identical, they were held to be deceptively similar on the basis that the essential feature of a girl with one arm raised and carrying something was common in both products.
The court in this case followed a strict interpretation of the word similarity. Even though there were other distinguishing factors, the similarity of an essential character was said to be the cause of deceptive similarity which may decisive the consumers.
In the case of Schering Corporation and ors. v. Getwell Life Sciences India Pvt. Ltd., the plaintiff who was using the mark “Temoget” for pharmaceutical products sued his competitor who was using the trademark “Temodal”. Both the medicines were made of Temozolomide essentially used to cure Brain cancer. However the court held that there is no infringement as they are not phonetically similar.
The court has looked at this case through liberal eyes. Even though the prefixes of both marks are identical and they are similar in the literal sense of the word “similar”, the court held that the mark is not infringing. The court looked at the likelihood of confusion among the consumers and not the textual meaning of law. This shows a departure from the usual positivistic original interpretation of law by the courts with respect to Section 9 of the Trademark Act, 1999.
In another case of Nestle India Limited v. Mood Hospitality Private Limited, the respondent filed a suit against the appellant who launched a product under the name of Maggi Cuppa Mania Instant Noodles which came in two flavours i.e. Masala Yo! And Chilly Chow Yo!. The products also contained the phrase Open! Fill! Go! which was similar to the respondent’s product which said Yo! On the Go. The respondent contended that the use of the word Yo! In the similar manner as of respondent is an infringement. The court held that Yo! is an expression usually used to seek attention. Moreover, the term is used after the words Masala and Chilly Chow which makes the trademark different.
Even though both trademark share a suffix, the trademark is looked at as a whole to check whether there is a likelihood of confusion. Thus, the court looked at the practices in the society and how the word Yo! is a form of expression and not a mere suffix and how a single word cannot blur the distinctiveness of each trademark.
In another case of Hiralal Prabhudas V. Ganesh Trading Corporation, The appellants were bidi manufacturers under the registered trade mark Hiralal. Respondents were also in the same business and carried the trademark Himatlal. However, their mark was restricted to Gujarat. Later they applied for amendment so as to change the label to be read as ”Vallabhdas alias Himatlal” The appellants then applied for rectification in register as the label was deceptively similar. The application was rejected by the Deputy registrar The appellant moved to high court, The court held that the marks are deceptively similar and allowed the appeal. The court laid down the following factors to decide if there is a deceptive similarity:
- Marks are not remembered as a photographic recollection but remembered by some significant details which contribute to a general impression.
- There should be an overall similarity between the two marks.
- The marks should be looked at from the point of view of a person of average intelligence and recollection.
- Structural and phonetic similarity and similarity of idea should be looked at.
- Marks must be compared as a whole and there should not be minute monitoring of similarity between details of the marks.
- The features of the marks should be considered.
- The nature, class of purchasers and the mode of purchase and other circumstances should also be considered.
The court interpreted the provisions of Trademark Act,1999 and using inclusive originalism expanded the scope of the provisions. The term deceptive similarity is defined under Section 2(h) in the following words, “A mark shall be deemed to be deceptively similar to another mark if it so nearly resembles that other mark as to be likely to deceive or cause confusion” Thus, the court is in lines with the original intent of the legislature, but has expanded its scope by adding phonetic similarity and such other features.
In the case of Mahashian Di Hatti Ltd vs Raj Niwas, the plaintiff alleged that defendant’s logo of MHS was deceptively similar to their logo of MDH. Both parties were involved in the same business and there is a likelihood of confusion among the consumers. The color scheme and the hexagon shape of the logo was identical in both the cases. Only the second and third letter of the label differed.
The court held that the marks were not similar on phonetic grounds but were similar to a large extent on visual grounds. The court held that, to constitute an infringement, it is sufficient to show that there is a likelihood of confusion. Thus it was held to be a case of infringement.
In another case of Amritpal Singh vs Lal Babu Priyadarshi And Anr., the court dealt with Section 9(2)(b) of the Trademarks Act, 1999. In this case, the appellant applied for registration of the mark “RAMAYAN” with a crown for his incense sticks and perfumeries. The application was opposed by the respondent contending that the mark was the name of a religious book and no sole person can have an exclusive right over it to use it. The court held that the mark cannot be registered. What amounts to hurting religious susceptibilities is not defined anywhere in the Act. They should be decided on the basis of current contemporary standards. The court has followed the original and narrow meaning of hurting religious susceptibilities.
In another case of Mangalore Ganesh Beedi VS Goklesh Pathakar and Ors, the respondent argues that use o Lord Ganesh’s picture on beedis hurt his religious susceptibilities as smoking is condemned under the Hindu religion. Secondly, packets of beedis are thrown in the dustbin after its use and that too hurt religious susceptibilities. The court held that it was not hurting the religious susceptibilities as invitation cards off marriages, photographs of God and Goddesses printed on the card also go to dustbin, hence nobody’s feelings are hurt.
In this case, the definition of hurting religious susceptibilities was carefully analysed with the situation of the current society. The court relied on the contemporary practices of societies to interpret the laws. This shows the shift from positivist originalism to normative originalism.
Thus Indian Courts are pro-actively using the originalistic interpretation to interpret the provisions of law especially in the trademark regime.
The theory of originalism took birth in USA. Originalism/ Originalistic is a term which describes an interpretative method which maintains the fixation thesis which says that the meaning is fixed at the time the law came into being. The interpretation of the law cannot go beyond the meaning. The originalistic theory says that the interpretation must be in consonance with the intention of the drafters. However this view is not popular now. The new theory of originalism says that the interpretation should be based on the ordinary meaning of the text based on the contemporary scenario. This new theory leans towards textualism and is considered as a normative approach to the theory of originalism.
In USA, the theory of originalism is used in interpretation of trademark laws. U.S. protects trademarks under its Constitution, the federal act which is Lanham Act,1946 and under state laws. Under the Lanham Act,1946, both common law marks and marks which are federally registered. US law protects domain name, some trade name and also trade dress. The state laws gives protection regardless of the formality of registration. Trademark in India is governed by the Trademark Act, 1999 which gives protection to the proprietor of trademarks registered under the Act. The act protects common law trademarks as well. The main difference between US Trademark law and Indian trademark law lies in their approach. Indian law is consumer-centric and US law leans towards the benefit of traders. This difference is an outcome of capitalism based economy in the US in contrast with the mixed economy of Indian society.
The US Judiciary generally follows an originalistic approach of interpretation but there is a leaning towards textualism nowadays. The fair use doctrine is a classic example of originalistic approach of US. The fair use doctrine allows the competitors to use descriptive words even if the descriptive word is trademarked by some other proprietor. Section15 U.S.C. § 1115(b)(4) of the Lanham Act,1946 specifies that it is not an infringement if “a use, otherwise than as a mark, of a term or device that is descriptive of and used fairly and in good faith only to describe goods or services of a party, or their geographic origin.” E.g. YUMMY tacos is registered by a proprietor who sells tacos. Another competitor can market their tacos saying, “ CROWN tacos, Yummy tacos”.
In the case of KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc.the owner of a trademark which included the words “Micro Colors” sued another competitor who used the same term for marketing its make-up products. The court did not discuss whether this act came under fair use. Instead the court discussed the burden of proof with respect to fair use doctrine. The court held that if plaintiff is able to give evidence that there is a likelihood of confusion, the defendant may present evidence against it saying their act will not create a likelihood of confusion. This requirement by the courts is a deviation from the originalistic interpretation of the laws. A bare reading of the statute shows that the burden of proof lies on the plaintiff to show the existence of confusion. Under Section 1115(b) of the Lanham Act, 1946, the burden of proof of proving likelihood of confusion in case of infringement is upon the person filing the suit for infringement i.e. the plaintiff. This section is applicable in the cases of proving infringement. The Act says nothing about likelihood of confusion as an element of deciding fair use. Thus the court seemed to have taken a broad interpretation which is not possible under an originalistic approach.
This approach is truly welcomed in trademark law of us. With changing technology, there is a need for interpretations beyond original meaning. Such need was felt after the case of Playboy Enterprises, Inc. v. Welles,. In this case, the trademark Playboy Mate Terri Wells used the trademark “ Playmate of the year” as meta- tag. Meta tags are used by the website owner to index their website. The owner of the trademark, Playboy Magazine filed a suit of infringement against the Wells. The court held that there is no infringement as it was a fair use because the meta tags are not visible to the web surfer and the act was done in good faith to index the website.
In Indian trademark law, Section 30(2)(d) of the Trademark Act,1999 says that it is not an act of infringement if there is a nominative fair use by third party. According to the section, if the trademark is used in trading of genuine spare part or accessories of goods and such use does not cause any confusion as to the origin of product or link the trader to the proprietor of such goods, then it is not an infringement.
In the case of Consim Info Pvt. Ltdd. Vs Google India. Pvt. Ltd, the High Court held that there are three requirements for a use to be considered as nominative fair use. Firstly, the good or service should not be easily identifiable without using the trademark in question. Secondly, the purpose should be to identify such good or service and only such mark should be used which is necessary to fulfil that purpose. Thirdly, by such use the user should not be suggestive of any endorsement or sponsorship or from the proprietor of the trademark in question or any form of conjunction with the disputed trademark.
There are other purposes for which the doctrine of nominative fair use can be used in India such as news article, criticism, parody and to some extent in the cases of comparative advertising. There are no specific sections under the trademark law which suggests such defences of fair use in a direct manner. However, Section 29(4) of Trademark Ac, 1999, it has been interpreted broadly to include such defences against infringement. The court has gone beyond the semantic meaning of the provisions to analyse trademark laws in accordance with the current need. The case of Tata Sons Limited vs Greenpeace International & Anr. on 28 January, 2011, is a great example to show the court’s interpretation of Section 29(4) to enable such defences under nominative fair use. In this case, Greenpeace International developed a game where the ghost characters of the game were showcased as TATA’s logos in different colours.
The other characters which were attacked by the ghost characters in the games were shown as yellow turtles. The game was developed to raise awareness about the danger to Olive Ridley turtles because of the construction of Dharma Port. TATA filed a trademark infringement suit against Greenpeace International, The court however held that there was no infringement as the use of the mark was not for commercial gain and they were also protected under the right of free speech which includes parody. Thus, in India, the defence of nominative fair use can be used as the courts follow aa normative originalistic approach of interpretation which allows for better protection by the trademark law by moulding it as per the needs of society.
The criteria of distinctiveness is common to both Indian and US laws for registration of trademark. The courts while determining the originality or the creativity in the trademark in infringement suits, has taken an originalistic interpretation.
In the case of Bigtree Entertainment v Brain Seed Sportainment, the plaintiff company operating under the trademark of BOOKMYSHOW, filed a suit of infringement against the company with trademark BOOKMYSPORTS, alleging that the mark was deceptively similar to theirs. The plaintiff contended that the prefix BOOKMY has acquired distinctiveness through their popularity and goodwill. However, the court held that the words “BOOKMY” are descriptive words and do not have any distinctiveness.
It can be seen that court set high standards of distinctiveness when it comes relief in infringement suits. In the US also, the standard of distinctiveness appear to be on the higher side. In the case of Entrepreneur Media, Inc. v. Smith, the court held that the plaintiff’s trademark Entrepreneur is a descriptive mark and he cannot have the exclusive right of using the term entrepreneur.
It can be said that both India and US is following inclusive originalism for interpretation of trademark law. The failure of strict originalist approach can be showcased with the case of Iancu v. BrunettiIn this case, the owner of a clothing line wanted the mark “FUCT” to be registered. However the mark was not granted registration due to its phonetic similarity to a curse word. The court held that registration of trademark cannot be refused based on the viewpoints of people. It will be a violation of free speech in the first amendment and therefore unconstitutional if trademark was subjected to the vague definitions of scandalous or obscene and thereby refused registration.
However, this seems to be an interesting turn from the positivist originalist approach of the US.. At the time of First amendment, there were no trademark laws protecting the proprietors. Hence, it can be safely assumed that the original intent of the drafters of first amendment did not include protection of free speech in the trademark regime. The court have however, in this case held that refusal of trademark registration is a violation of first amendment. This shows that US approach of strict originalism is replaced by inclusive originalism.
An inclusive originalistic approach is truly the need of the hour. US who had a strict interpretation of originalistic theory has realized the lacunas in the theory and has adopted a middle path so as to benefit the citizens. India, being a welfare state, also follows a similar trend to provide maximum protection. The developed and developing nation are following the same path of normative originalism or inclusive originalism to support the needs of contemporary society.
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