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Law of Trademarks
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LLM · Group 3 Law of Intellectual Property and Information Technology
2025-26 Examination
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LLM Group 3 Law of Intellectual Property and Information Technology Law of Trademarks 2025-26 Question Paper with Solutions
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First published on munotes.in on 13 September 2026.
Published by munotes.in, Mumbai.
Model answers written and edited by the munotes.in editorial desk.
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The University does not publish an official answer key for this paper. The answers in this volume are model answers, written to show how a full-mark answer is built. They are a study aid, not an authority on what an examiner marked.
The question paper reproduced here is the paper as set by the University of Mumbai at the 2025-26 examination.
The law in these answers is stated as at September 2026, and four changes date most textbooks on this subject. THE INTELLECTUAL PROPERTY APPELLATE BOARD NO LONGER EXISTS: section 21 of the Tribunals Reforms Act, 2021 omitted sections 83 to 90 with 89A, and sections 92, 93, 95, 96, 99 and 100, of the Trade Marks Act with effect from 4 April 2021, so an appeal from the Registrar under section 91 now goes to the High Court, and an application for removal or rectification under section 47 or 57 goes to the Registrar or the High Court. THE TEXTILE CHAPTER IS GONE: Chapter X, sections 79 to 82, was omitted by section 7 of the Trade Marks (Amendment) Act, 2010 with effect from 8 July 2013, the day Chapter IVA brought the Madrid Protocol into Indian law. THE OFFENCES WERE CUT DOWN ON 1 AUGUST 2024: the Jan Vishwas (Amendment of Provisions) Act, 2023 omitted sections 106, 108 and 109, turned the false representation of a mark as registered under section 107 into a penalty of one half per cent of turnover or five lakh rupees, whichever is less, imposed by an adjudicating officer under the new section 112A with an appeal under section 112B, and left sections 103 to 105, on applying false trade marks and selling goods that bear them, as they were; the Jan Vishwas (Amendment of Provisions) Act, 2026 does not amend the Trade Marks Act at all. AND INDIA JOINED THE NICE AGREEMENT with effect from 7 September 2019, and the thirteenth edition of the Nice Classification has applied since 1 January 2026.
Contents
The questions below are the paper as the University of Mumbai set it at the 2025-26 examination, in the order it was set.
MarksPage
The Paper as Set
The questions in this volume are the questions asked at the 2025-26 examination, reproduced as the University of Mumbai set them, in the order it set them. Nothing has been reworded, added or left out. Only the answers are ours. See the original question paper.
Duration 3 hours · Total marks 100 · 7 questions answered
How to use this volume
Solve the paper first, under exam conditions and against the clock. Then read the answers here and mark your own. Reading a solution before attempting the question feels productive and teaches very little, because recognising an answer is not the same as being able to write one.
1.Discuss the historical development of trademark law at the international and national levels. Examine the role of the Paris Convention, TRIPS Agreement and Madrid System in shaping modern trademark protection.[25]
Answer
For full marks, cover: two parts. The HISTORY should run on two tracks, national and international, with dates, and should show how each Indian statute answered the problems of the one before. The ROLE of the three instruments is an evaluation: PARIS created the framework of national treatment and priority; TRIPS made standards binding and enforceable; MADRID made international protection cheap and simple. For each, say what it required and where the Indian Act gives effect to it.
The origins: marks before registration
Marks are older than law. Potters, masons and guild craftsmen marked their work for centuries, and merchants' marks identified goods in medieval trade. The law first protected them not as property in a sign but as a matter of FRAUD: a trader who sold goods as another's deceived the buyer and injured the rival. That idea became the common law action for PASSING OFF, which still exists and which SECTION 27(2) of the Trade Marks Act, 1999 expressly preserves.
The national track
Before 1940. British India had NO REGISTER OF TRADE MARKS. A trader proved title by proving use, and protection came through the PASSING OFF action and the criminal law, including the INDIAN MERCHANDISE MARKS ACT, 1889 and the relevant provisions of the Indian Penal Code on false marks.
The Trade Marks Act, 1940 (5 of 1940). India's FIRST TRADE MARK STATUTE and FIRST REGISTER. Registration ran for SEVEN YEARS. Several of the Supreme Court's foundational cases were decided under it, among them Amritdhara Pharmacy v. Satya Deo Gupta, AIR 1963 SC 449, on the test of deceptive similarity, and Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories, AIR 1965 SC 980, on the difference between infringement and passing off.
The Trade and Merchandise Marks Act, 1958 (43 of 1958). It CONSOLIDATED the law of trade marks with the law of MERCHANDISE MARKS, the provisions on false trade descriptions, into one statute. It kept a SEVEN YEAR term, divided the register into PART A AND PART B, allowed DEFENSIVE REGISTRATION, and did NOT PROTECT SERVICE MARKS at all: a bank, a hotel or an airline could not register its mark. Most Indian case law of the twentieth century, including Parle Products (P) Ltd. v. J.P. and Co., Mysore, AIR 1972 SC 1359, was decided under it.
The Trade Marks Act, 1999 (47 of 1999). Assented to on 30 DECEMBER 1999 and brought into force on 15 SEPTEMBER 2003. Its long title states its aims: to amend and consolidate the law relating to trade marks, to provide for registration and better protection of trade marks for GOODS AND SERVICES, and to prevent the use of FRAUDULENT MARKS. The office of the Controller General lists its principal changes: an enlarged definition including SHAPE, PACKAGING AND COMBINATION OF COLOURS; registration of SERVICE MARKS; a SINGLE REGISTER; COLLECTIVE MARKS; an INTELLECTUAL PROPERTY APPELLATE BOARD; MULTI CLASS FILING; a TEN YEAR TERM; ENHANCED PUNISHMENT and COGNIZABLE offences; protection against use of another's mark as a CORPORATE NAME; and wider powers to grant EX PARTE INJUNCTIONS.
Since 1999. The TRADE MARKS (AMENDMENT) ACT, 2010 (40 of 2010), in force from 8 JULY 2013, inserted CHAPTER IVA for the MADRID PROTOCOL and omitted CHAPTER X on textile goods. The TRADE MARKS RULES, 2017 collapsed seventy four forms into a handful and introduced expedited processing and a procedure for listing well known marks. The TRIBUNALS REFORMS ACT, 2021 abolished the Appellate Board with effect from 4 APRIL 2021 and returned appeals to the HIGH COURTS. And the JAN VISHWAS (AMENDMENT OF PROVISIONS) ACT, 2023, from 1 AUGUST 2024, omitted sections 106, 108 and 109 and made section 107 a civil penalty.
The international track
The problem. Trade mark rights are TERRITORIAL. A mark protected in one country is unprotected in the next, and a trader expanding abroad had to meet a different set of rules, in a different language, with no guarantee of fair treatment as a foreigner. Toyota Jidosha Kabushiki Kaisha v. Prius Auto Industries Ltd., (2018) 2 SCC 1, still applies that TERRITORIALITY doctrine in India: PRIUS, famous abroad, had to be proved known in India.
1883, Paris. The PARIS CONVENTION FOR THE PROTECTION OF INDUSTRIAL PROPERTY, signed on 20 MARCH 1883, was the first multilateral treaty on industrial property, covering patents, designs and marks together.
1891 and 1989, Madrid. The MADRID AGREEMENT concerning the international registration of marks was adopted on 14 APRIL 1891, and the PROTOCOL relating to it on 27 JUNE 1989, to make international registration workable for countries that had not joined the Agreement.
1957, Nice. The NICE AGREEMENT created the international classification of goods and services, now in its THIRTEENTH EDITION from 1 JANUARY 2026.
1994, TRIPS. The AGREEMENT ON TRADE RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS, annexed to the WTO Agreement signed at Marrakesh on 15 APRIL 1994, made intellectual property standards part of the WORLD TRADING SYSTEM.
India's accessions. India acceded to the PARIS CONVENTION on 7 DECEMBER 1998, was bound by TRIPS as a founding member of the WTO, acceded to the MADRID PROTOCOL on 8 APRIL 2013 with effect from 8 JULY 2013, and acceded to the NICE AGREEMENT on 7 JUNE 2019 with effect from 7 SEPTEMBER 2019.
The role of the Paris Convention
National treatment. Each member must give nationals of other members the same protection it gives its own. Foreign traders ceased to be at a disadvantage abroad.
The right of priority. A person who files in one member country has a PRIORITY PERIOD in which to file in the others, and the later filings take the date of the first. For trade marks ARTICLE 4C fixes the period at SIX MONTHS, while for patents it is twelve. SECTION 154(2) of the Indian Act gives effect to it: an application in India within SIX MONTHS after an application in a CONVENTION COUNTRY is registered AS OF THE DATE OF THE CONVENTION APPLICATION.
Independence of marks. Registration in one country is independent of registration in others, so a mark refused in one member is not thereby refused everywhere.
Well known marks: Article 6bis. Members undertake to refuse or cancel the registration, and prohibit the use, of a mark that is a REPRODUCTION, IMITATION OR TRANSLATION, liable to create confusion, of a mark considered WELL KNOWN in that country, with NO TIME LIMIT where the later mark was registered or used in BAD FAITH. This article is the origin of India's well known mark provisions in SECTIONS 2(1)(zg), 11(2) AND 11(6) TO (10).
Service marks: Article 6sexies. Members must PROTECT service marks but NEED NOT PROVIDE FOR THEIR REGISTRATION, which explains how India could protect services only through passing off until 2003.
Agents: Article 6septies. A proprietor may oppose or cancel a registration obtained by his AGENT OR REPRESENTATIVE without authority.
Its limits. Paris set principles but few minimum standards, and it had NO EFFECTIVE ENFORCEMENT MECHANISM: a country that breached it faced no sanction beyond the theoretical jurisdiction of the International Court of Justice.
The role of TRIPS
It incorporated Paris and made it enforceable. ARTICLE 2 requires members to comply with ARTICLES 1 TO 12 AND 19 OF THE PARIS CONVENTION, and the whole Agreement is enforceable through WTO DISPUTE SETTLEMENT, with trade sanctions behind it.
It set minimum standards for marks. ARTICLE 15: any sign capable of distinguishing is protectable, and use may not be a condition of filing. ARTICLE 16: an exclusive right against confusing use, with confusion PRESUMED for identical marks on identical goods, and extended protection for WELL KNOWN marks, including across dissimilar goods. ARTICLE 17: only limited exceptions. ARTICLE 18: a term of at least SEVEN YEARS, renewable indefinitely. ARTICLE 19: cancellation for non use only after THREE YEARS. ARTICLE 21: NO COMPULSORY LICENSING and freedom to assign WITH OR WITHOUT THE BUSINESS.
It required enforcement. Civil remedies, PROVISIONAL MEASURES including orders without hearing the other side, BORDER MEASURES against counterfeit goods, and CRIMINAL PENALTIES for WILFUL TRADEMARK COUNTERFEITING ON A COMMERCIAL SCALE under ARTICLE 61.
Its effect on India. The Trade Marks Act, 1999 was drafted to meet TRIPS. SECTION 29(3) reproduces the presumption of confusion; SECTIONS 11(2) AND 29(4) protect well known and reputed marks across classes; SECTION 25 gives ten years; SECTION 38 allows assignment with or without goodwill; SECTION 135(2) provides ex parte injunctions; SECTION 140 provides border notices; and SECTIONS 103 TO 105 punish counterfeiting. Renaissance Hotel Holdings Inc. v. B. Vijaya Sai, (2022) 5 SCC 1, reading sections 29(2), 29(3) and 29(4) as distinct heads for similar and dissimilar goods, reflects the same structure as ARTICLE 16.
The role of the Madrid System
The problem it solves. Even with Paris and TRIPS, a trader wanting protection in forty countries needed forty applications, in forty languages, through forty sets of local agents, with forty renewal dates.
How it works. A trader with a BASIC APPLICATION OR REGISTRATION in his home office files ONE INTERNATIONAL APPLICATION, in one language, with one set of fees, through that office, DESIGNATING the countries he wants. The International Bureau of WIPO records an INTERNATIONAL REGISTRATION and notifies each designated office, which may REFUSE PROTECTION within a fixed period on its own grounds; if it does not, the mark is protected there as if registered locally. Renewals and changes of ownership are recorded centrally.
India's implementation: Chapter IVA. SECTION 36D allows an applicant or registered proprietor in India to file an international application based on his Indian application or registration. SECTION 36E requires the Registrar, on receiving advice of an international registration designating India, to examine it under SECTIONS 9 TO 21 as if it were an Indian application, to refuse or condition protection within EIGHTEEN MONTHS of the advice, and otherwise to advertise it and, absent opposition, protect it. Madrid work is done at the head office in MUMBAI.
Its effect. Madrid made international protection affordable for small and medium enterprises and gave foreign brand owners a simple route into India, supporting both Indian exports and foreign investment.
| Instrument | Date, and India | Core contribution | Indian provision |
|---|---|---|---|
| Paris Convention | 20 March 1883; India 7 December 1998 | National treatment, six month priority, well known marks | s.154, s.11(2), s.2(1)(zg) |
| TRIPS Agreement | 15 April 1994; WTO founding member | Binding minimum standards and enforcement | ss.29(3), 25, 38, 135, 140, 103 to 105 |
| Madrid Protocol | 27 June 1989; India from 8 July 2013 | One international application | Chapter IVA, ss.36A to 36G |
| Nice Agreement | 1957; India from 7 September 2019 | International classification | s.7, rule 20 |
Conclusion. Trade mark law began as protection against FRAUD through passing off. In India, a common law and criminal regime under the INDIAN MERCHANDISE MARKS ACT, 1889 gave way to the first register under the TRADE MARKS ACT, 1940, the consolidated TRADE AND MERCHANDISE MARKS ACT, 1958 with its seven year term and no service marks, and the TRADE MARKS ACT, 1999, in force from 15 SEPTEMBER 2003, which added service marks, shapes, colours, collective marks, multi class filing and a ten year term, and was itself amended in 2010 for MADRID, in 2021 by the abolition of the Appellate Board and in 2023 by the JAN VISHWAS reforms, while the courts still apply the TERRITORIALITY principle affirmed in Toyota Jidosha Kabushiki Kaisha v. Prius Auto Industries Ltd.. Internationally, the PARIS CONVENTION of 1883, joined by India in 1998, laid the foundation of NATIONAL TREATMENT, SIX MONTH PRIORITY given effect by SECTION 154, and protection of WELL KNOWN MARKS under ARTICLE 6bis. TRIPS, of 1994, made those foundations BINDING AND ENFORCEABLE, set MINIMUM STANDARDS in ARTICLES 15 TO 21, and required civil, border and criminal ENFORCEMENT, and the 1999 Act was drafted to meet it. The MADRID SYSTEM, under the Protocol of 1989 which India joined with effect from 8 JULY 2013, made multi country protection possible through ONE INTERNATIONAL APPLICATION, implemented by CHAPTER IVA.
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