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Working Papers | 2024

Trademark Proprietor’s “Moral Right” as an Exception to the Doctrine of Exhaustion of Rights in Trademarks

Sahana Simha and M P Ram Mohan

Trademark law is primarily viewed as a consumer protection law. Proprietary and consumer interests are not always balanced. This is especially evident in the doctrine of exhaustion of rights in trademarks, where the trademark owner loses control over the further distribution of their trademarked product once sold. Existing statutory exceptions to this doctrine allow the proprietor to take action against resellers only when the product has been impaired or changed. The exceptions do not account for harm or damage to the reputation and goodwill associated with a trademark as a ground to override exhaustion. This paper analyses legislative and judicial decisions regarding exceptions to exhaustion under Indian trademark law, with a comparative examination of rulings from the US and EU jurisdictions. We then highlight the theoretical differences between trademark and copyright law, exploring moral rights in copyright law and the anti-dilution theory of trademarks. In doing so, we examine the feasibility of expanding exceptions to the doctrine of exhaustion to include proprietary concerns, in addition to consumer and market considerations.

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Working Papers | 2024

The Glittering Paradox: Unveiling India's Gold Policy Evolution And Its Enduring Flaws

Ramakrishnan Padmanabhan, Chandan Satyarth and Sundaravalli Narayanaswami

In recent years, despite reforms and ambitious initiatives like establishing exchanges to enhance transparency in the gold ecosystem, significant time has been consumed by corrective actions and a lack of clear government direction. The corrective actions included the decisions taken during the intervention phase (2012-2013), the transparency phase (2014-2018) and the RBI circulars, notifications and guidelines post 2012 till date. Some of the aspects of gold policy that require corrective action may include the Free Trade Agreements with different countries and trade blocs, different government of India notifications to tackle the import of gold exploiting the India Government Policy loopholes. A review may be timely of the NITI Aayog Report on Transformation Gold Policy issued in February 2018, the recommendations of IGPC-IIMA working group and the subsequent launch of India International Bullion Exchange (IIBX) and its future. There's a need for decisive steps that promise long-term benefits for the nation.

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Working Papers | 2024

Re-evaluating Corporate Purpose: A Critical Assessment of the Indian Stakeholder Governance Framework through a Historical and Comparative Analysis

M P Ram Mohan and Astha Pandey

In the last century, the meaning and interpretation of the purpose of the corporation has undergone a succession of ideological shifts. Corporate purpose has become the prime focus of wide-ranging debates over the shareholder primacy versus the stakeholder primacy conceptualization of the corporation. While this debate is not new, in recent times, stakeholderism and its enduring viability as a theory of the corporation has gained considerable traction. At the same time, shareholder primacy and its explanatory power as a valid theory of contemporary organizations is being increasingly questioned. The current Indian legal and regulatory framework governing corporate purpose embodies stakeholderism. In sharp contrast to this, the Anglo-American corporate law framework can be characterized as predominantly shareholder-centric. This article seeks to contribute to contemporary discourse on the theorization of corporations by evaluating the stakeholder-oriented corporate purpose framework adopted by India. In doing this, it examines the historical trajectory of the doctrine of corporate purpose in the U.S., the U.K. and India. This comparative analysis provides an opportunity for enhancing discussions on corporate purpose in comparative corporate governance scholarship given the common law heritage of these jurisdictions and the differences between them in terms of ownership patterns, governance structures and philosophies that have guided their experience with corporate purpose. Broadly, this article makes the following arguments: (i) tracing the evolution of corporate purpose demonstrates that there is a need for its re-evaluation; and (ii) despite adopting the pluralistic form of stakeholder governance, the Indian framework governing corporate purpose is lacking in certain fundamental aspects. The article also proposes certain areas for further scholarly investigation to inform the re-evaluation of corporate purpose and the direction of comparative corporate governance scholarship.

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Working Papers | 2024

The Supreme Court of India's Use of Inherent Power under Article 142 of the Constitution: An Empirical Study

M P Ram Mohan, Sriram Prasad, Vijay V Venkitesh, Sai Muralidhar & Jacob P Alex

The Constitution of India under Article 142 grants the Supreme Court of India with broad inherent powers to do complete justice. The contours of this inherent power and what it means to achieve complete justice were left to the Supreme Court to determine itself. In this paper, we empirically examine all the Supreme Court cases from its inception in 1950 till 2023 which use the term "Article 142" or "Complete Justice" We found 1579 cases, which were then hand-coding for many variables such as the nature of the case, where the case was appealed from, the temporal distribution, the laws involved, the nature of the issue, the judges involved, among others. The paper examines when and how the Supreme Court wields its inherent powers, generating various insights and exploring trends.

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Working Papers | 2024

Multi-Duty Structures in India’s Gold Import Policies: Evidence of blatant flaws using Trade data of 2023-24

Sundarvalli Narayanaswami and Anumeha Saxena

Policy initiatives to manage gold imports in India have historically relied on the use of customs duty. However, the presence of a multi-duty structure essentially offers gold traders a legal channel to re-route imports with little risk of punitive action. In this paper, we present multiple instances from FY 2023-24 where importers have significantly exploited these loopholes to import at lower rates. We also observe that exhaustive identification of alternative routes that traders can potentially exploit is infeasible. Reactive interventions to curb the traders taking advantage of the loopholes or gaps in policies are also not helpful in the long run. Traders are quick enough to snoop out the best possible channels to maximize their outcomes, which systemically leads to uneven playing fields for different types of traders. Subsequently, we show that the use of multiple taxation structures as a tool to contain Current Account Deficit (CAD) and to facilitate a level-playing market for importers of various sizes, in-fact is counter-effective. Traders are able to quickly discover more loopholes and are able to legally increase their import volumes at lesser imports duty. The current multi-duty structures to manage gold imports and in turn, India’s current account deficit, continue to be weak. To curb such unintended discounts and imports arbitrage in the domestic gold market, it is recommended that a single import duty is levied on all variants of the precious metal.

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Working Papers | 2024

An Empirical Analysis of ‘Scandalous’ and ‘Obscene’ Trade Marks in India

M P Ram Mohan, Aditya Gupta and Vijay V Venkitesh

Morality-based restrictions on trademarks have gained widespread acceptance since their statutory recognition in 1875, appearing in the domestic statutory language of 163 out of 164 WTO member states. Building upon earlier conceptual work, this study empirically examines the administration of India's iteration of moral-based trademark limitations, which prohibit the registration of scandalous or obscene marks. Expanding on a prior anecdotal and purposive study, the authors create a novel dataset to analyze the implementation of the provision. The dataset examines 1.6 million trademark examination reports filed between 2018-2022. Through auto-coding, the authors identify 140 applications objected for containing scandalous or obscene matter. A systematic analysis classifies the objections into three categories - those concurrently raising relative and absolute grounds of refusal, successful circumvention of morality objections through ambiguity, and an alarming lack of objections for potentially offensive marks. The findings provide empirical evidence in the administration of morality-based proscriptions in India.

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Working Papers | 2024

The price of honesty: Indian firms’ response to stringent disclosure regulations

Shubhankar Mishra

Using a regulation implemented by SEBI in November 2016 as an exogeneous shock, I test whether firms with bad quality of information disclosures attempt to conceal firm-specific information when faced with a business environment marked with heightened disclosure quality requirement mandated by law for the CRAs. Specifically, the study empirically attempts to analyze whether regulation is sufficient to create a separating equilibrium, in terms of the quality of disclosures to CRAs by firms. I find a statistically significant decrease in number of security issuances and number of CRAs bad type firms engage with, as well as an increase in the number of security downgrades that they suffer in the post-regulation environment. However, the decrease in number of issues is weakened if the firm is listed, has high proportion of independent directors in its board or gets its statements audited by a Big 4 auditor, all of which signal that the firm is of a good type. These findings indicate that bad type firms strategically chose to reduce their issuances and initiate new firm-CRA relationships after the regulation to conceal their firm type, but they weren’t successful in escaping from the suffering for long.

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Working Papers | 2024

Health Shocks, Risk Aversion, and Consumption Choices: Evidence from Household Intoxicant Spending in India During COVID-19

Bharat Barik

This study delves into the nuanced relationship between heightened health awareness amid the COVID-19 pandemic with household intoxicant consumption patterns in India. The central hypothesis posits the pandemic as a transformative shock, shaping both health awareness and intoxicant consumption, guided by risk aversion. Analysis using a difference-in-differences approach underscores a substantial reduction in intoxicant expenditures for households without health insurance compared to households with health insurance during the pandemic, with specific categories like cigarettes, tobacco and liquor expenditure experiencing a drop for uninsured households. In rural areas households lacking health insurance exhibit a notable reduction in intoxicant expenditures than the rural areas. This study contributes to the understanding of economic and behavioural responses to health crises, offering valuable insights into the complex interplay between risk perception, health awareness, and consumption choices in challenging times.

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Working Papers | 2024

Global Supply Chain Vulnerabilities: Assessing Firm Risk, Environmental Commitments, and Information Channels in the wake of COVID-19

Huzaifa Shamsi

This study investigates the profound impact of the COVID-19 pandemic on firm risk, focusing on supply chain disruptions and their spillover effects on environmental commitments. The research highlights the crucial role of information channels in mitigating these challenges. Employing a Difference-in-Differences (DiD) regression design, the findings reveal a significant increase in default probability among US-incorporated firms with heightened foreign relationships post-COVID-19, particularly those connected to Chinese supply chains. Additionally, firms with foreign relationships show a decline in environmental commitments, suggesting prioritization of survival during adversity. Notably, companies with robust information channels with industry peers exhibit resilience against supply chain disruptions.

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Working Papers | 2023

‘Scandalous’ and ‘Obscene’ Trademark Law: Determining the scope of morality-based proscriptions in Indian Law

M P Ram Mohan & Aditya Gupta

Morality-based restrictions on trademarks are a ubiquitous element of domestic trademark legislations, appearing in 163 out of 164 WTO member states. In 2019, the United States Supreme Court ruled against the constitutionality of

these provisions in Iancu v. Brunetti, and opined that they run afoul of American free speech jurisprudence. The Court’s discomfort was with the structure of the legislative proscription, and they emphasized the significance of linguistic regulation rooted in moral principles within trademark law. The Indian counterpart of these provisions suffer from a unique problem: despite being a part of the legislative framework for over four decades, no legislative or judicial body has interpreted morality-based proscriptions in India. Examining the administrative practices of the Indian Trade Marks Registrar and reviewing the Indian Trade Marks Register convey an inconsistent application of this provision. The findings highlight a need to develop comprehensive guidelines. This paper underscores the legislative language of Australian law as the closest analogue to Indian law on the subject and proposes an overarching framework for discerning the import and meaning of ‘scandal’ and ‘obscenity’ within the context of Indian law.

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