Question of Fact or Law w.r.t. IP & an Alt Proposition!

 

The question of law is decided by presiding officer/judge. Question of fact by circumstantial exhibits. And its conclusion is reached whilst concluding the above two with case precedences aka case laws. For example, can a commonly used initial name be given an exclusive proprietorship rights under trade mark; becomes a mixed matter i.e. both question of law & fact.

 

Wasn’t an admirer of the term case precedences or case laws. Why? For any issue contended, a case precedence is always present that’s printed published every year. If not present, Constitution is there to cite the grievance, which would cover almost every act & every narrative in accordance with natural justice. One very basic example is of procedural / condoning delays. The intent can be coated with a veil in determining the question of facts. The question of law can be twisted in determining the intent.   

 

I believe, everything should start with a mediation, wherever applicable, without coercion, undue influence. A simple mediation. Then, be further proceeded, if goes unproductive. The ex-parte decisions, shouldn’t become a weapon to decide matter of fact or law. Where delays in disposing of matters are modus operandi, then question of law in itself is questionable. Where delays are intentional, then question of fact in itself is questionable. 

 

The winning or losing isn’t the issue. But what becomes the case precedent, is. As, how the question of law or fact is decided, implicitly depends on case to case basis. For eg. who stood there to argue or to decide; who sent or funded who were standing there to argue or decide. Alas! Such things are never taken cognizance of. 

 

Thence, past distinct precedences shouldn’t play any role in determining the present for the above reasons. Intents differ. Traits differ. One who’s representing or analyzing, differs. Whilst deciding the question of law, basis of present is analyzed. Whilst deciding the question of fact, presence of circumstantial exhibits are analyzed. Which would then derive the Intent, without Dent. As one who’s deciding, knows the question of law + natural justice itself. Whereas, the procedural formalities & submissions, are presentation of facts done by an intermediary. :)

© Pranav Chaturvedi