Non-Discrimination in International Trademark Protection: A Critical Study of National Treatment and Most-Favoured-Nation Treatment under TRIPS and Indian Law

The Non-discrimination principle is the basis of the global trademark system. This is embodied in the TRIPS Agreement through the principle of national treatment in Article 3 and most-favoured-nation treatment in Article 4. It also elaborates the Paris Convention, incorporated into Article 2.1, and Article 15(4) which prohibits refusing registration on the basis of the characteristics of the goods or services. This article examines the extent to which Indian trademark law fulfils these obligations and highlights areas where its application is at odds with them. It is argued that the Trade Marks Act 1999 is formally neutral as to the nationality of applicants and proprietors. The outstanding questions concern the substance: the treatment of well-known trademarks and their reputation in the transnational sphere; the practical treatment of foreign and local owners; and the interaction between domestic public interest regulations and the principle. The article begins with a description of the doctrinal basis of non-discrimination in the Paris Convention and TRIPS, including WTO case law on national treatment and MFN in the US – Section 211 Appropriations Act, and the limits of trademark rights in the plain packaging controversies. It then assesses the Indian legal framework and its judicial interpretation with a special focus on registration, well-known marks and the Supreme Court's recognition of transborder reputation. Finally, it considers whether any other differential treatment can be attributed to administrative procedures, evidentiary requirements or regulatory regimes and whether any such differences are compatible with Articles 3, 4 and 15(4). On the face of it, Indian legislation seems to be largely compliant with TRIPS, says the article. It defines areas of demarcation, particularly the identification of famous marks and the evidentiary standards required of foreign owners, where the compliance is dependent on uniform judicial and administrative enforcement. It offers suggestions for more precise legal instructions to bring India's trademark system in line with the non-discrimination commitments it has undertaken.