Analysis of the Mysterious Element of Quality Control in Trademark Licensing

This article is about the practice of trademark licensing done without an exercise of quality control which in the legal parlance is known as 'naked licensing'. The article explores the meaning, origin, forms and rationale of quality control which as per the law, the proprietor of a trademark must exercise on the activities of his licensee. There are two kinds of provisions in the Trademarks Act, 1999 as to requirement of quality control. One, direct provisions found in Sections 49(1)(b) and 50(1)(d) mandate a registered proprietor to exercise quality control over the registered user. Two, the provisions mandating quality control are implicit in other provisions of the Act such as Section 57 read with Section 9. The paper seeks to analyse the relevance of these provisions and develops an argument that the direct provisions have lost their relevance and should be taken out of the statute book while maintaining that the implicit provisions continue to be meaningful.