A Critical Analysis Of Arbitrability Of Trademark Disputes Vis-À- Vis International Commercial Arbitration

Dr. Charu Srivastava, Associate Professor, UPES

Siddharth Jha, B.Com. LL.B. (Hons) UPES

ABSTRACT

Arbitration as an alternative dispute resolution has gained significant momentum in the contemporary time especially in the growing commercial market transpiring beyond territorial boundaries. Nevertheless, trademark disputes have a dicey relation with arbitration as they are a sort of monopolistic rights conferred by the State. However, arbitration under its wider periphery has substantial scope to resolve trademark disputes in harmony with the said concern. The commercial value of a trademark is indispensable to realise the growth in business against the existing competitors in the market. It creates an expectation in the minds of the consumer concerning the quality and functionality of the goods and services associated with the trademark. This inherently creates a nexus between the suppliers and their offerings to maintain the associated distinctiveness and facilitate identifying the same globally which vitalises their commercial protection.

The paper shall be dealing with the subject matter in four parts. The first part will provide a global perspective on the issue of arbitrability of trademark disputes wherein the nuances of a trademark as a commercial intellectual property against arbitration shall be highlighted. With the existing legal stance on arbitrability of intellectual property, in the second part, the existing stance of trademark disputes in common law jurisprudence shall be comparatively studied. The third part shall deal with the issue of arbitrability under sub-heads of ‘right in personem’, ‘subordinate right in personem arising from right in rem’ and ‘right arising from contractual obligations’. Subsequently, in the advancing part the scope of international commercial arbitration of trademark disputes vis- à-vis Arbitration and Conciliation Act, 1996 ( hereinafter “1996 Act”) shall be provided and finally concluded about its existing position. The research paper shall adopt a doctrinal research methodology.

Keywords: Trademarks, Arbitration, Conciliation, international commercial, disputes