EXHAUSTION OF RIGHTS AND PARALLEL IM PORTS: A TRADE M ARK ANALYSIS VIS-A-VIS THE JUDGEM ENT OF KAPIL W ADHWA V. SAM SUNG ELECTRONICS CO. LTD. Jupi Gogoi* I. INTRODUCTION Consumption is the sole end and purpose of all production; and the interest of the producer ought to be attended to, only so far as it may be necessary for promoting that of the consumer (Adam Smith). Intellectual Property Rights is a stream of law which recognizes and protects the output of human intellect. Saying that, it is also important to ascertain that the main reason for the protection of IPR is social welfare, that is, encouraging innovation which furthers social good. One of the most important intellectual property rights is Trade Mark (TM). TM is basically a sign that is used to distinguish the goods or services offered by one undertaking from those offered by others. So it is quintessential that the trade mark must be distinctive and it should not be deceptive. 1 Under the Trade Mark Act, 1999, a trade mark is defined as a 'mark' which is capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours. 2 TM law is largely territorial in nature. The trade mark rights are promulgated by the national legislation and judiciary and are enforced on a national basis. This means that, irrespective of the trademark owner holding rights in different countries, an action for infringement will lie in a country only so far as it involves the vindication of the rights available in such country. 3 Moreover, TM is one of those IPR which is given perpetual protection. To counter this restriction on trade imposed by territoriality of trademark and to put a restriction on the perpetuity of the unlimited protection granted to TM, the principle of exhaustion was applied. 4 NOTES & COM M ENTS Vol. 42, No. 2, Ban.L.J. (2013) 105-110 * Assistant Professor, Indian Law Institute, New Delhi. 1 The courts in India has time and again in various cases reiterated that distinctiveness is the essential feature of trade mark law. Hindusthan Development Corporation v. the Deputy Registrar of Trade Mark, AIR 1955 Cal 319; Imperial Tobacco Co. Of India v. The Registrar of Trade Mark, AIR 1977 Cal 413; Geep Flashlight Industries v. Registrar of Trade Mark, AIR 1972 Del 179. 2 Section 2(1) (zb) of the Trade Mark Act, 1999. 3 Sneha Jain, Parallel Imports and Trademark Law (2009)14 JIPR at 14 . 4 Id. at 15.