Friday, 17 November 2017

What is a nation?

What is a nation? Is a nation the territory it occupies? Is it the machinery it occupies? Is it the people who make up a nation? Is it the flag or symbol? Is it the presence of an army? What it is, it is definitely not something physical and therefore has to be an abstraction of the mind. There is one argument that can be used against all the questions posed here – fluidity. In the modern world, there is nothing static – borders, machinery, people, flags, symbols or the army. Nations come and nations go, empires rise and empires fall. There is nothing more fluid than concepts and living beings. People take birth, and people die.

The formation of a nation is based on certain principles – may be history, may be language, may be culture and heritage or may be just random divisions or political gameplay. There is no fixed criteria for the formation of nations, and hence there is no set criteria for self-determination as well. What is the right to self-determination? The expression, “the right to a future, and the right to have political, social and economic autonomy” is quite a vague expression and this leads to the wrong idea that there is a “right to a nation”. Nation-states are inherently abstract and fluid and therefore subject to abuse of political process for individual gains. The feeling of nationalism stems from freedom and autonomy of the political process – breathing the Indian air free from external influence is an essential part of the feeling of “Indian-ness”.

This feeling comes by inheritance through a feel of security for the economic, social and political future of the people that are the subjects of the government of a nation – that they have a voice in the policy that shapes their daily lives today. This had been achieved either through the bullets that were fired from guns or through means that were not as physically violent but conveyed the same message – “We want you gone.” Does this feeling of security constitute the most of nationalism that we see in the world today? Where else does this feeling of protectionism come from? The protection of cultural heritage and traditions are the primary reason for a nation to exist so that they are not wiped out by other external influences in the wake of easy governance and standardisation.

What then is a nation? What then is nationalism? It is the abstract superstructure to protect abstract substructures of an abstract society – abstractions over abstractions over abstractions. There is no physical existence of a nation, but only a perceived abstract existence.

Sunday, 18 June 2017

Design patents, utility patents and trade dress under US law

Design patents are the patents that have been granted for any non-functional invention for a device, for example, the inventive value of the aesthetic aspect of a device. Unlike copyrights, these are enforceable under a court of law and damages are paid for infringement of these patents, even if any person developed and manufactured the same design independent of the patent holder. These patents are granted to real innovative design which is not very obvious as a product design, along with novelty.

The granting or denying of such a patent has been well established by the “ordinary observer” test[1], where the observer is aware of prior art and can not identify the design present in front of him as violating the prior work of some other design made by some other person.

Design patents strictly have to adhere to the principle of non-functionality and functionality can not be included in design patents. To prove that there is no basis of functionality in what is invented for a device, makes it eligible as a candidate of design patent. So, only aesthetics and not any technological advancement can be patented under the purview of design patent.

Utility patents, on the other hand form the functional basis of a device, and unlike design patents, these never form the aesthetic part of the device. These patents are the safeguards of the inventor who invent the underlying technology in a device, like the wireless technology used in a device, which are not even visible to most ordinary men. Here the inventions are about the basic functionality of the device on which the device will run and perform.

Trade Dress is a part of trademark law. Covered by the Lanham Act, distinctiveness is a must to get a trade dress under Section 43. Distinctiveness so much as to be an ikon design in the market is required and mandatory. If a person makes a look alike using the signature feature of the product of the company, it violates its trade dress, as it confuses consumers as to the origin of the goods. This distinctiveness is elaborated as the following:

When we talk about distinctiveness, the distinctiveness must be such that at one glance of the product, any ordinary man would think of one product and one product only, which happens to originate from the company who applies for that particular trade dress. For example, the term ‘Cadbury’ is synonymous with ‘chocolate’, and the term ‘cadbury’ does not make any other person think twice as to what it might be – it refers to one and only one product in the market, or in this case a class of products in the market with different models or flavours.

Now, when we talk about design, distinctiveness must not be generic. Any company who sold their automobile with the name of ‘car’ cannot claim it as a trade dress even if it satisfies the above condition laid down as mandatory by the courts in the United States. For, it is absurd to have a trade dress for something so generic – it is a term used in general and never used to denote some specific product or method a product is used for.

Now, when we talk about design, the thing that brings us back to ‘design patents’ in this context is functionality again. This is a critical point for determining the validity of a design patent of a product. By speaking of functionality we plainly take the literal meaning of functionality, that is, whether the particular thing patented in the design patent serves for a particular functional purpose in the device or not. If it actually does serve a particular function, it goes beyond the purview of ‘design’ and becomes a ‘utility’ patent for that device, and in such circumstances, design patents are invalidated.

Coming to the term ‘functionality’, it is of two types –
·         Operable functionality is the way the product works – the functionality that consists of the core functions of the device and is a mandatory of the device.
Aesthetic functionality, on the other hand, forms a non-essential part of the core functions of the device. This is merely to please the eyes – like the aluminium lining coming in newer model phones today. They serve no purpose in the functioning of the device but make the device aesthetically pleasing to look at.

This functionality rule is therefore a very important aspect of the determination of the validity of design patents in any intellectual property rights case that whether it is functional or not to be called as a design patent. And what means by the word ‘functionality’ and what comes under the purview of the same has been already discussed and elaborated above.

[1]Formulated in Gorham Co. v. White 81 U.S. 511 (1871)

Friday, 10 March 2017

None of the above: Killing democracy

Elections will always be quite the topic in India. When we speak of the topic ‘NOTA’, or ‘None of the above’, we refer to democracy and its fundamental principles and one generally leans towards it being a huge boon to democracy. Before we even go into that debate, let us ask ourselves, how many Indians have a clear concept of what democracy is? Well, very few to be precise. With that in mind, let us first aim to look at what democracy is, so the readers need not have a single speck of doubt as to why arguments are placed on NOTA being a regress or progress in the first place.
Now, we need not go into the details of democracy and how it came to place, for that would be out of scope and off topic for the post. Let us have a look into the fundamental principles that govern democracy and the concept. First up, a definition of democracy simply does not exist. If you may ask why, well, that is because it is just a concept of the form of government and there is no consensus among the various political thinkers to define democracy and its vital parts. However, we are saved as there actually is a unanimous opinion between them as to which are the vital parts. If that was not there, how could we even call countries ‘democratic republics’ in the first place? The basic fundamental necessity of democracy is public participation, or public opinion as people would like to look at it. That means, every citizen, as duty bound to the constitution should necessarily vote in order to bring out the true essence of democracy – and this is where NOTA hits the core of democracy like a dagger plunging into the heart, in the hands of a cold-blooded beast, ruthless and vengeful. Another important key point of democracy is equality – everyone is equal and no one is above law; from the president to the homeless, everyone is considered equal human beings and that brings us to another concept we need to understand – the vote of every single citizen carries equal weight – no more, no less. From the Nobel laureates of India, to those who don’t have time enough to think about democracy as they have nothing to eat for the day, everyone gets one vote – and no single vote is more powerful than the other. You are nobody when you vote and the ocean of anonymity engulfs you – no black no white; no Bihari, no Punjabi; no rich no poor – only human; only a citizen of India. So, democracy is thus the form of government where real power lies in the people, and in an ideal case, the phrase ‘We, The People’, not ‘We, The People Who are Rich and Resourceful’. This is a very strong concept as the government is liable to be overthrown, protested against and all forms of opposition can be put forth legally to the government to ensure a responsible and accountable government – it is the public opinion that counts – ‘greatest happiness of the greatest number’ that ultimately prevails.
            Now that we have a brief idea of the essence of a democracy, let us look into the problems of democracy, and intertwine them with the concept of NOTA to make things clear about it being a progress or regress. Let us begin with ‘We, The People’. It all sounded so good in the last paragraph when the concept of power to the people was put forward – seemed like ‘We, The People’ had the power to create governments, the power to create a nation, the power to build, and to destroy; the power to decide the future and the power to create happiness rest in the hands of the people. But, before we dive too much into utopia, there is one question that comes into the mind, is majority opinion the best opinion? Even if it is, how much is the majority opinion reflected in the Indian system of representative democracy? To answer the first question would probably take some of the greatest political minds of the world, and there is no single answer available. But both a yes and no to the question lead to the second question, is the Indian system really the majority opinion? India has a first-past-the-post voting system, which is highly in contrast of the simple majority voting system. First-past-the-post, herein referred to as FPTP, is a voting system which is a concept one has to fully understand in order to fully realize the impact of NOTA. FPTP system provides for the filling of vacant seats in a legislature by the decreasing order of votes secured by the candidate. Let us take an example for this to understand, suppose, there are five candidates for an election – A, B, C, D and E, and there are three seats. Now, let us have a fictional result of A receiving 20% of votes, B receiving 14% of votes, C receiving 10% of votes, while D receives 7% and E receives 15%, and the rest 34% decide not to vote. Here, A, E and B shall fill up the vacant seats of the legislature, in spite of having less than 50% of total votes. A with 20% votes, E with 15% votes and B with 14% votes now represent the people and make laws. Do A, B and E really reflect the views people wanted? Where is the majority opinion in this government? Democracy is not seen in its pure form in any FPTP system in the world. Now, let us come to something unnoticed - the votes received by C and D. These are called wasted votes – and the wasted votes also include the extra 4% of votes A had after winning – for he only required 16%. Concepts like gerrymandering come up with the FPTP system, but that again, unfortunately would lie out of scope. Focusing on NOTA here, we see that the 34% who chose not to vote, are already exercising their right not to vote that comes along the right to vote. Coming to think of it, the right to choose none of the candidates existed in Section 49(O) of the Representation of People Act already, just that it was available as a form which had to be submitted to the electoral officer. The advent of NOTA, has given a huge blow to democracy under the belt. For, what we see here is the encouragement of not choosing a candidate – the equivalent of not voting at all. Whether you vote or not, a candidate is going to be selected even if he gets 1% and the rest 99% goes for NOTA. There is no provision for re-election if NOTA exceeds the percentage of votes a winning candidate has got. In the present Indian scenario, very few people care about politics being busy with their own focus on themselves, and not the country. NOTA was just the thing they needed; and the politicians needed. The gap between the general people and the field of politics just got wider, and it is not closing anytime soon. From a thin line, now it has become a broad gap and the arena of politics is degrading at a rapid pace every day. Instead of encouraging people to engage in politics, to think about the nation and its policies, to influence the government, to build a better nation, the Indian nation is more keen on keeping most people out of thinking about the government and enabling them to not participate at all – one less headache for them, one less headache for the political parties. If you think NOTA is going to deter politicians to be responsible, think again. Then there’s another aspect to look into it, will anyone really stand in the sun waiting for hours just to tell the nation that they do not have an opinion. NOTA was the easy way out for most people, but simply sitting and not going to vote is an easier option. Even the Supreme Court has stated “Eventually, voters’ participation explains the strength of democracy. Lesser voter participation is rejection of commitment to democracy slowly but definitely, whereas larger participation is better for democracy[1]”. While it is true that some voters may actually be encouraged to participate in voting, how does their coming to vote change the result of voting? The ultimate result of the vote is not going to change. NOTA provides for discouraging of democracy and encouraging of ignorance to nation politics which is already taking its toll on India heavily.

[1] Venkatesan, J., NOTA will curb impersonation: court, available at


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