Year: 2016

‘Trademark Dilution Doctrine’ is basically a trademark law concept that permits the owner of a famous mark to forbid others from using that mark in a way which would harm its uniqueness. A trademark is diluted when the use of similar or identical trademarks in other noncompeting markets means that the trademark in and of itself will lose its capacity to signify a single source. In other words, unlike ordinary trademark law, dilution protection extends to trademark uses that do not confuse consumers regarding who has made a product. Instead, dilution protection law aims to protect sufficiently strong trademarks from losing their singular association in the public mind with a particular product, perhaps imagined if the trademark were to be encountered independently of any product. The aim of this paper is to study in detail this doctrine as it stands today after the enactment of the Trademark Dilution Revision Act 2005 in the United States, and indicate key issues which require detailed inquiry and analysis.

The corporate sphere, globally, has been known for its power tussle. There have been numerous instances where corporate enterprises have witnessed clashes within different ranks of its substructure, with a view to gain as much control as possible. The focus of corporate governance, in most cases, has been to curb the struggle between the management and the share/stake holders of the company by trying to even out the inherent imbalance be- tween the two camps of the corporation. One of the key mechanisms to do the same has been the evolving concept of a separate Chairman of the board and a Chief Executive Officer. Traditionally, the role had been bestowed on a single individual who was to be the ultimate repository of power, but owing to some catastrophic financial failures witnessed in various nations, the distinction in the two functions was proposed. The present paper maps out the trajectory of advances in the said field of corporate governance in three nations, i.e. the United States, United Kingdom and India. The aim is to juxtapose the advancement in the three countries and analyse the justification advanced by regulators worldwide, in keeping the two positions separate. A cross-national study shall help demystify the corporate temperament in the aforementioned regard and shall present a broad sample space to base the observations. We have argued through the course of the paper that a functional leeway, if made available to the corporations, shall help them to realistically achieve protability and shall also ensure compliance, in letter and spirit, with global corporate governance norms.

The amenability of educational activities to the provisions of the Consumer Protection Act, 1986 is one of the quintessentially tumultuous areas of Indian consumer law, falling in the penumbral area thereof. The Indian Supreme Court has through a series of three decisions gradually decreased the amenability of educational institutes and the educational activities per- formed thereby from the purview of the 1986 Act, with its most recent order – P.T. Koshy v. Ellen Charitable Trust – ostensibly excluded them altogether from the purview of the Act. In light of these developments, this article shall evaluate the tenability of the Supreme Court’s position, by undertaking a critical analysis of the legal correctness of the exclusion of educational activities from the purview of the 1986 Act, and determine the practical implications that are bound to ensue therefrom. Further, it shall rebut the multifarious lines of reasoning that have been advanced, in support of such exclusion, and establish conclusively, why educational institutions (of every class) and the activities rendered by them should, to the extent that they are otherwise classifiable as ‘services’ as defined in §2(1)(o) of the 1986 Act, not be excluded from the purview thereof, and thus demonstrate the fallaciousness of the Supreme Court’s position in this respect.

§§65A and 65B of the Evidence Act, 1872 were introduced in 2000 with the aim to lay down admissibility standards for electronic evidence in courts. However, this attempt at standardization has not seen much success and there has been significant divergence in practice in courts across India. Recently the Supreme Court in P.V. Anvar v. P.K. Basheer attempted to address this problem by explaining and laying down the requirements under §65B.

This paper argues that while the Supreme Court in Anvar may have been well-intended, it has misstated the position of law. First, the provision has been read in a manner that contravenes principles of statutory interpretation. Second, the Supreme Court has improperly restricted the possible methods of authentication to only ‘certi cates’ under §65B(4). At the same time, there are problems with how §65B, as originally drafted, attempts to offset questions of accuracy and reliability. Accordingly, this paper, on an examination of practices followed by other common law countries, recommends the adoption of an entirely different model of authenticating electronic evidence.

The 2016 version of the Model Bilateral Investment Treaty unveiled by India reflects a major step towards clearing India’s not-so-attractive reputation in the world of international investment. The Model text however, though a revised version of the draft text released in 2015, still does not elevate India to the standard of an investment friendly country. Various provisions of the Model Bilateral Investment Treaty are a knee-jerk reaction to the investment claims faced by India in the past, and they seek to safeguard the regulatory powers of the State more than the catering to the objective of investment promotion and protection. The Model Bilateral Investment Treaty also deviates from various traditional norms of Bilateral Investment Treaties, which could back re in the long-run as the scope of application and interpretation of these new standards could remain with the arbitral tribunals which may choose a liberal interpretation over a narrow one. Therefore, India should embrace the current trends in investment protection from around the world even more to remain in competition for attracting foreign investments.

The Finance Act, 2015 amended §6(3)(ii) of the Income Tax Act, 1961 to introduce a new test for determining the residential status of companies. The new test is called the ‘Place of Effective Management’ test for interpretation of which, the Central Board of Direct Taxes has recently issued draft guide- lines. This test replaces the erstwhile control and management test which has common law origins and was laid down in a context that best suited the interests of imperial powers. Looking closely at the workings of the erstwhile test and comparing it with the definition and draft guidelines on the Place of Effective Management test, it emerges that there is much similarity. Further, the government’s justifications for making this amendment are on shaky ground which raises some fundamental concerns which need to be addressed first. ‘Place of Effective Management’ does not have a universally accepted meaning and Organisation for Economic Co-operation and Development which does recognise the concept, has now recommended adopting a case-by-case approach to determine the residential status of companies to tackle tax avoidance. Alignment of the domestic law with the so-called international standard of Place of Effective Management (where it used as a tie-breaker rule in a number of Double Taxation Avoidance Agreements), would only reduce the tie-breaker rule of Place of Effective Management to naught.

Clinical legal education emerged in the United States in the 1960s to give valuable skill-based instructions to law students while providing legal ser- vices to people who could not otherwise afford them. This essay proposes another reason why both Indian and American law schools should support the development of law clinics. Drawing on the works of John Dewey and Martha Nussbaum, I argue that clinical legal education promotes democracy. Both elite American and Indian universities are largely unrepresentative of the respective population demographics of their countries. In clinics, law students bridge this divide by undertaking representation for people from different racial, caste, and income backgrounds than themselves. These exchanges generate empathy and knowledge among students about the challenges marginalised groups in the society face. Consequently, they learn to recognise other citizens as equals and to formulate policies that will enhance the welfare of society as a whole. There is an urgent need to formalise clinical legal education programs in Indian law schools both for purposes of enhancing the democracy as well as providing skill-based training to law students and much-needed legal services to the poor.