Mutation of the Trademark Doctrine : Analysing Actionable Use to Reconcile Brand Identities with Constitutional Safeguards

Trademarks serve as a storehouse of information, assuring consumers about the quality of a product by ensuring that products bearing the trademark originate from a consistent source. The trademark doctrine has accommodated this position as its underlying thesis for several decades, and consumer confusion has served as a touchstone for trademark liability. However, given the configurations of the modern marketplace, trademarks transcend their role as source-identifiers and are framed in the language of relationships rather than transactions. With continuous and consistent use, trademarks can come to signify opulence, luxury, dependability and become cultural icons. The modern trademark doctrine must accommodate these realities of the marketplace while, at the same time, accommodating the flourishing exchange of expressive uses through unauthorized use of trademarks. This push-and-pull has resulted in complete obliteration of what were already obscure boundaries between the expressive and marketing spheres of trademark law. Drawing from the American, English, and European trademark jurisprudence, the present study examines the normative foundations of the modern trademark doctrine. These foundations are then extrapolated to Indian trademark law to create a workable limitation of mutating trademark doctrine through the actionable use requirement. The authors attempt to discern the normative foundations of the individual cause of actions in the infringement liability and argue that such foundations should serve to delimit the scope of protection offered therein. Given the relevance of expressive uses in trademark law, the last section of the present study examines the relevance of constitutional and policy-based arguments in determining trademark infringement liability. The study reveals that, within Indian judicial discourse, there is an alarming disconnect between the normative foundations of infringement liability and their interpretation. This affects the interpretation of the limitations offered by the trademark statute and can potentially push trademark law in troubling directions