#infringementoftrademarks

[legalupanishad]

Dhruv Rathee held liable for Unauthorized use of Trademarks

This article on 'Dhruv Rathee held liable for Unauthorized use of Trademarks: Facts and Laws' was written by an intern at Legal Upanishad.

Introduction

Dhruv Rathee is a popular Indian social media personality, YouTuber, and blogger who has been accused of using trademarks without obtaining prior permission from the owners of those trademarks. Some of the companies whose trademarks were allegedly used by Rathee include Reliance Industries Limited, Bharatiya Janata Party, Indian National Congress, and All India Trinamool Congress. In response to the allegations, Rathee has claimed that the use of trademarks falls under the "fair use" doctrine of copyright law. However, the use of trademarks without permission is a violation of the Trademarks Act, 1999 in India, and the "fair use" doctrine does not apply to trademarks. This article will discuss the facts and laws related to this matter and explore the potential legal consequences that Rathee may face for his unauthorized use of trademarks.

Allegations levelled against Rathee for the Infringement of Trademark

The allegations made against Dhruv Rathee for infringing trademarks involve his use of logos and trademarks of various companies and political parties without obtaining their prior permission. The companies whose trademarks were allegedly used by Rathee include Reliance Industries Limited, Bharatiya Janata Party, Indian National Congress, and All India Trinamool Congress. These companies have sent Rathee legal notices asking him to stop using their trademarks without permission. Trademark infringement occurs when someone uses a trademark that is identical or similar to a registered trademark without obtaining the owner's permission. In India, the Trademarks Act of 1999 provides legal protection to trademark owners and prohibits others from using their trademarks without permission. The unauthorized use of a trademark can confuse the public and harm the brand reputation of the trademark owner. In response to the allegations, Rathee has claimed that his use of trademarks falls under the "fair use" doctrine of copyright law. However, the "fair use" doctrine only applies to copyright law, not trademark law. The use of trademarks without permission can also amount to passing off, which is a common law tort. Passing off occurs when someone uses the trademark or name of another person or company to deceive the public into believing that their goods or services are associated with the original owner. If found guilty of infringing the trademarks of the respective companies, Rathee may face legal consequences. The Trademarks Act of 1999 provides for both civil and criminal remedies for trademark infringement, including damages, injunctions, and imprisonment.

What the Law says about Infringement of Trademarks under the Trade Marks Act, 1999

The Trademarks Act of 1999 provides for several provisions for the infringement of trademarks. Some of the key provisions are: - Section 29: This section provides for infringement of registered trademarks. “It states that a person shall be deemed to infringe a registered trademark if he uses a mark that is identical or similar to the registered trademark about goods or services which are identical or similar to those for which the trademark is registered”. This section also covers cases of deceptive similarity. - Section 30: This section provides for infringement of trademarks with reputation. “It states that a person shall be deemed to infringe a trademark with a reputation if he uses a mark that is identical or similar to the trademark concerning goods or services which are not similar to those for which the trademark is registered, and the use of the mark takes unfair advantage of or is detrimental to the distinctive character or repute of the registered trademark”. - Section 31: This section provides for infringement by applying the trademark to goods or services. “It states that a person shall be deemed to infringe a registered trademark if he applies the trademark to goods or services that are identical or similar to those for which the trademark is registered”. - Section 32: This section provides for infringement by importing goods. “It states that a person shall be deemed to infringe a registered trademark if he imports goods that bear a mark identical or deceptively similar to a registered trademark, and such goods are identical or similar to the goods for which the trademark is registered”. - Section 33: This section provides for the defence of infringement. “It states that infringement of a registered trademark shall not be deemed to occur if the use of the trademark is under honest practices in industrial or commercial matters”. - Section 135: This section provides criminal remedies for trademark infringement. “It states that a person who knowingly infringes a registered trademark shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with a fine”. These provisions help protect the rights of trademark owners and provide remedies for infringement.

Important Case Laws on Trademark Infringement

There have been several landmark cases in India related to trademark infringement, which have set important precedents and helped define the legal framework for trademark protection in the country. Here are some of the most notable cases: - Amul v. Kwality: This case is considered a landmark case in Indian trademark law. In this case, the court held that the plaintiff's mark, "Amul," was a well-known trademark and that the defendant's mark, "Kwality," was deceptively similar to the plaintiff's mark, and hence amounted to trademark infringement. - Bata India Limited v. Chawla Boot House: In this case, the court held that the use of the trademark "Bata" by the defendant amounted to trademark infringement and passing off. The court also held that the defendant's use of the mark was likely to confuse the minds of consumers and that the plaintiff had established a strong reputation and goodwill in the market.

Possible Outcome of Dhruv Rathee’s Trademark Infringement

Trademark infringement occurs when someone uses a trademark without permission, which can include using a similar mark, using the mark for goods or services that are similar to those covered by the registered trademark, or using the mark in a way that could cause confusion or dilution of the original mark. If Dhruv Rathee is liable for unauthorized use of trademarks, he may face legal consequences such as a court order to stop using the trademark, paying damages to the trademark owner for any losses they incurred as a result of the infringement, and possibly facing criminal charges. Recently in the case of Dabur India Limited v. Dhruv Rathee & Ors. the Calcutta High Court granted interim relief to the company and directed Rathee to remove offending portions from one of his videos containing “Real Fruit Juice”, a registered trademark product. Justice Ravi Kishan Kapur has observed “Prima facie, at the ad interim stage even though the underlying intent of the impugned video may not be objectionable, in making repeated direct and brazen references to the product Real of the petitioner, the Lakshamanrekha or the Rubicon has been crossed. In my view, the petitioner’s product Real has been specifically targeted, denigrated, and discredited in the impugned video.” It is evident from the above case that trademark infringement is a clear violation of the Trademark law. It is important to note that trademark law is complex and the outcome of any particular case will depend on the specific facts and circumstances involved.

Conclusion

It appears that Dhruv Rathee may have used trademarks without permission, which could potentially make him liable for trademark infringement. The laws regarding trademarks vary by country, but generally, using a trademark without permission can lead to legal action and potential damages for the trademark owner. It is important to note that trademark law can be complex, and the specific circumstances of each case will need to be evaluated to determine liability. Additionally, any legal action taken against Dhruv Rathee would need to be pursued through the appropriate legal channels.

References

- The Trade Marks Act, 1999 (Act No. 47 of 1999). - Passing Off: General overview and protection under the trademark law, available at: https://samistilegal.in/passing-off-general-overview-and-protection-under-the-trademark-law/#:~:text=Section135oftheAct,infringinggoodslabelsetc. (last visited on March 29, 2023). - What is Infringement of Trademark, available at: https://blog.ipleaders.in/what-is-infringement-of-trademark/ (last visited on March 29, 2023). - Udit Singh, “YouTuber Dhruv Rathee To Remove 'Targeted' References To 'Real Fruit Juice' From His Video: Calcutta High Court Grants Interim Relief To Dabur” LIVELAW, Mar. 29, 2023. Read the full article

#CaseAnalysis #CaseStudy #infringementoftrademarks #LawsinIndia #trademarkinfringement #TRADEMARKS #TRADEMARKSININDIA

[legalupanishad]

Rooh Afza vs Dil Afza: Case Analysis

This article on 'Rooh Afza vs Dil Afza: Case Analysis' was written by Monika Yadav, an intern at Legal Upanishad.

Introduction

In this article, we will be discussing an important case law related to trademark protection. "Hamdard” is a well-known name that manufactures a variety of items such as ayurvedic medicines, cough and other syrups including certain unani medicines also, etc. "Rooh Afza” is also a sweet beverage product manufactured by the Hamdard group of companies. This matter related to this same product arises a conflict upon the trademark conflict with a similar product named "Dil Afza”.

About the Rooh Afza vs Dil Afza case

The ad interim order granted by the Single Judge rejecting the infringement suit filed by the appellant-plaintiff and additionally requesting a permanent injunction forbidding Sadar Laboratories (the respondent) from utilizing the trademark "SHARBAT DIL AFZA," and this was deceptively similar to the registered trademark of the plaintiffs "ROOH AFZA," was declared unconstitutional by a Division Bench of Vibhu Bakhru and Amit Mahajan, JJ.

Background

The appellant, who has been in the business of producing and selling a wide range of items for more than a century, including unani and ayurvedic medicinal products, oils, syrups, and non-alcoholic beverages, is additionally the holder of the trademarks "HAMDARD" as well as "ROOH AFZA," which are applied to a wide range of goods and services provided by the Hamdard Company. The applicants argued that now the trademark "HAMDARD" had been accepted as a household mark of said Hamdard Group of companies, that it would be a well-known mark as defined by Section 2(zg) of said Trade Marks Act, 1999, and that it had become listed among those well-known marks.

ISSUES:

- Is it appropriate to grant a permanent injunction preventing the respondent from violating the petitioner’s trademark protection? - Is it possible to obtain protection from infringement, depreciation, and disparagement of trademarks as well as from reputational harm and financial loss? - Does this Court grant any orders in accordance with Section 124(5) of said Trade Marks Act of 1999? - Whether there would be ambiguity if the plaintiff’s trademark were used on comparable goods?

Statements made by the Appellants

The appellants' legal counsel asserts that the name "ROOH AFZA" was a well-known mark with significant goodwill associated with sharbat. The appellants learned of the defendant's introduction of its sharbat carrying the mark "DIL AFZA" in 2020 out of advertising in a daily paper. The appellants asserted that perhaps the trademarks "DIL AFZA" and "ROOH AFZA" were confusingly similar to one other. Additionally, the item's packaging and design, especially the bottle that the defendant employed, was misleadingly similar to those of the appellants' item.

Statements made by the respondent

The respondent asserted that since 1949, its unani medicines, including unani medicinal syrups and its syrups and beverages, have been sold under the aforementioned contested trademark. Additionally, it was asserted that the respondent combined the distinct words "DIL" and "AFZA" to create the trademark in question. Such words, which loosely relate to "heart" and "increasing"/"giver of plenty," seem to be from the dictionary of the Urdu and English dialects. Because they own the combined mark "ROOH AFZA," the applicants couldn't even assert any monopoly rights over the term "AFZA." There was no exclusive authority to utilize any component of the mark "ROOH AFZA" as a result of its licensing. Moreover, the Court ruled that it was extremely pessimistic to assume that the usage of the terms "Dil" and "Rooh" would lead to misunderstandings since they imply strong emotions.

Analysis, legislation, and judgment

After carefully considering the evidence presented, the Single Judge came to the conclusion that the appellant's assertion that they had established significant goodwill and reputation concerning the trademark "ROOH AFZA" cannot be disproved. Accordingly, it was decided that the applicants can only assert their exclusivity rights over the entire trademark "ROOH AFZA," not just the two terms "ROOH" and "AFZA," which made up the trademark. The Court stated as this would not be hard to imagine that someone looking at the labeling of DIL AFZA may remember the name of ROOH AFZA because the word "AFZA" was prevalent and because the meanings of "ROOH" and "DIL," when converted into English, were frequently used together. Additionally, it was stated that "the advertising appearance of the impugned trademark was confusingly similar to the appellant's trademark and, at first glance, the appellant's mark was indeed a solid mark, as well as the necessity of protection tends to vary correspondingly also with the strength of said mark; the better the mark, the greater the necessity to safeguard the same."

Conclusion

The Court pointed out that the aforementioned photos make it obvious that such trade dress for the two items is comparable. This fact as both containers are clear and the colouring of the fluid is exactly the same, together with the fact as both items share the same dark red texture and colour, will surely add to the entire image of the item which any customer might remember. In light of this, the Court decided that the appellant's mark needed a significant amount of protection and concluded that it was crucial to make certain that the competitor stayed well away from the claimed mark. As a result, the Court overturned the Single Judge's decision and declared that the prior interim injunction was final and therefore would stand until the case was resolved. The Court additionally ordered the respondents to cease manufacturing and selling any goods within Class 32 using the disputed trademark "DIL AFZA" until the lawsuit was resolved. “Another aspect to take into account is the product’s price. The item is inexpensive and edible. As a result, the consumer’s focus on the goods displayed on the shelf or within an online store would at most be superficial. The typical consumer is not anticipated to carefully consider every aspect of the item as one might when making a high-value investment choice,” the court stated.

References

- Hamdard National Foundation (India) v. Sadar Laboratories Pvt. Ltd., 2022 SCC OnLine Del 4523, decided on 21-12-2022, https://indiankanoon.org/doc/11763122/ - Delhi High Court restrains Sadar Laboratories from manufacturing or selling products containing trademark ‘DIL AFZA’ till final disposal, Available at: https://www-scconline-com.cdn.ampproject.org/v/s/www.scconline.com/post/2022/12/23/rooh-afza-v-dil-afza-delhi-high-court-restrains-sadar-laboratories-from-manufacturing-or-selling-products-containing-trademark-dil-afza-till-final-disposal/ (Accessed: January 25, 2023). - Nupur Thapliyal, ‘Rooh Afza' Trademark Has Acquired Immense Goodwill, Requires High Degree Of Protection: Delhi High Court In Suit Against 'Dil Afza' Sharbat, Available at: https://www-livelaw-in.cdn.ampproject.org/v/s/www.livelaw.in/amp/news-updates/rooh-afza-trademark-goodwill-delhi-high-court-suit-dil-afza-sharbat/ (Accessed: January 25, 2023). - Hamdard National Foundation vs Sadar Laboratories Pvt Limited, Available at: https://www.jainandpartners.com/news/details/73 (Accessed: January 25, 2023). Read the full article

#AyurvedicMedicine #infringementoftrademarks #LawsinIndia #Medicine #trademarkinfringement #TRADEMARKS #TRADEMARKSININDIA #UnaniMedicine

[legalupanishad]

Subway Trademark Case: All you need to know

This article on "Subway Trademark Case: All you need to know” was written by Shudhi Malhotra, an intern at Legal Upanishad.

Introduction

Delhi High Court: In a case where Subway sought an injunction for its mark "SUBWAY" against the mark "SUBERB," C. Hari Shankar, J. dismissed the application and held that after Infinity Food made changes to the decor, layout, the wall hanging, menu cards, and staff and outlet uniforms, the mark's appearance could not be said to be confusingly similar to Subway's device mark, "SUBWAY." A case of trademark infringement brought by the international fast food chain against Suberb, a Delhi-based restaurant, was dismissed by the Delhi High Court. A "sub" is not only a sandwich from Subway. According to the court, the term "sub" is frequently used to refer to submarine sandwiches, which are made using a cylindrical bread roll that has been split down the middle and is filled.

What is Trademark?

- A trademark is a symbol, design, word, or phrase that associates a company with its goods or services. - As soon as a trademark is registered, the owner is granted "exclusive rights" to use it. - The trademark registration process is governed by the Trademark Act, of 1999. A trademark that is registered with the Controller General of Patents, Designs, and Trademarks, generally known as trademark registration, is guaranteed protection under the Act. - A trademark has a ten-year lifespan and may be perpetually renewed by the owner every ten years.

Infringement of a Trademark

A registered trademark is violated or infringed upon when used without the consent of the organization that owns the trademark. It may also be illegal to use a mark that is substantially similar to similar products or services. Courts must decide in these situations whether consumers will be confused between the two as a result. A trademark can be violated in a variety of ways. The trademark holder must, however, demonstrate that the mark has a distinctive character. Deceptive similarity- According to the law, a mark is regarded misleadingly similar to another mark if it closely resembles the other mark and causes consumer confusion. Such trickery may be produced aesthetically, architecturally, or phonetically. Passing off- Let's take the example of a brand emblem that is difficult for customers to understand because of a misspelling. The allegedly infringing commodities need not be identical in these situations; rather, it is necessary to demonstrate that the rival traders' goods are comparable in terms of their essence, character, and functionality. (Cadila Pharmaceuticals Limited v. Cadila Healthcare Limited, 2001) Essentially, it is necessary to prove some sort of fraud, misrepresentation, or harm to the goodwill and reputation of the owner of a mark to claim "passing off."

Background of the Subway Trademark Case

The plaintiff (Subway) was a U.S.-based corporation that ran a well-known international chain of restaurants by that name. In addition to owning the registrations for the "SUBWAY" word and device marks in India, the plaintiff also held registrations for the names "SUBWAY CLUB" and "VEGGIE DELITE," which it used for its club sandwich and vegetable sandwich, respectively. Defendants 3 and 4 were partners in the partnership firm represented by Defendant 1 (Infinity Food). Defendants 3 and 4 were licensees of the plaintiff to whom the plaintiff had granted the right to franchise the plaintiff's outlets, and they had been serving and selling the plaintiff's products through the outlets they operated since 2019.

Submission on behalf of the Plaintiff

According to Subway, Infinity Food violated its intellectual property rights by doing the following: - The use of the "SUBWAY" brand name and logo, with a matching yellow and green color scheme, for the two restaurants owned by Infinity Food. - Usage of the names "VEGGIE DELICIOUS" and "SUB ON A CLUB," which were confusingly close to Subway's registered trademarks for "VEGGIE DELITE" and "SUBWAY CLUB." - Use of the same or similar menu cards, paper napkins, signage, store decor, and staff uniforms. - The use of images and wall art in their locations that were comparable to those in Subway's locations. - Using the same methods, processes, and ingredients for meal preparation as those used in Subway outlets and placing the service counters in the restaurants in the same location. - Recitals on the Subway website were copied word for word and formatted similarly on the Infinity Food website.

Submission on behalf of Defendants

Infinity Food offered to: - (a) change the color scheme of the exterior signage of their restaurants to a combination of purple, pink, white, or red; - (b) change the color of their logo to a combination of one or more of the aforementioned colors; - (c)  refrain from using the colors yellow or green in either the signage or the logo; - (d)  take down their website that copied the text from Subway's website, and (e) change the names of their sandwiches “VEGGIE DELICIOUS” and “SUB ON A CLUB” to “VEG LOADED REGULAR” and “TORTA CLUB”.

Subway Trademark Case: All you need to know

Law, Analysis, and Judgment

The Court stated that Subway was not pleased with the adjustments made by Infinity Food since the word marks "SUBWAY" and "SUBERB" were confusingly similar to one another as word marks and would still be confusing even if the color scheme of the said marks were changed. Further noted by the court was Infinity Food's argument that Subway could not assert exclusivity over the initial "SUB" portion of the "SUBWAY" mark since "SUB" was generic about the goods in connection to which it was used. The question put to this Court was, "Whether, after the modifications that Infinity Food had made, it could still be considered to be infringing Subway's registered trademark, or passing off its goods and services as those of Subway, to entitle Subway to an injunction?" The court pointed out that under Section 29 of the Trade Marks Act, 1999 (Act), only registered trademarks could be infringed upon, and Section 28 of the Act provided protection for marks that already had registrations, like the word mark and device mark "SUBWAY," both of which were owned by Subway. To receive protection from this Court against infringement, Subway was not authorized to use any other registered trademarks. The Court further noted that Section 17(2) of the Act prohibited dissection of a trademark and the assertion of exclusivity in respect of a portion of the mark (anti-dissection rule) as well as the assertion of infringement in respect of any matter that was common to the trade or otherwise of a non-distinctive character (public Juris). The Court opined that Infinity Food's mark “SUBERB” could not be said to infringe any of Subway's word mark or device mark as “SUBERB” was not phonetically similar to “SUBWAY” though both were words of two syllables. The first syllable “SUB” was common and “SUB”, when used in the context of sandwiches, was well known that it was an abbreviation for “Submarine”, which represented a well-known variety of long-bodied sandwiches, generally 6 or 9 inches in length. “SUB” was therefore, public Juris when used in the context of such eateries, and thus, no exclusivity could be claimed by Subway over the first part of its registered “SUBWAY” mark, that is, “SUB”. Moreover, once the “SUB” part of the “SUBWAY” mark was out of the way, there was quite obviously no similarity at all between “WAY” and “ERB”. The Supreme Court ruled in J.R. Kapoor v. Micronix India, 1994 Supp (3) SCC 215, that no exclusivity could be claimed over the prefix "Micro" and that no infringement could be claimed because the suffixes "Nix'' and "Tel" were phonetically and otherwise dissimilar. The Division Bench of this Court concluded that "Temokem" was not confusingly similar to "Temoget" when used for pharmaceutical products containing temozolomide in Schering Corporation v. Alkem Laboratories Ltd, (2009) SCC OnLine Del 3886.

Conclusion

The court determined that Infinity Food's red and white "SUBERB" mark was no longer confusingly similar to Subway's device mark following the alterations made by Infinity Food. Additionally, the changes made to the two marks "VEG LOADED REGULAR" and "TORTA CLUB" would put an end to any claims of infringement because "CLUB" and "VEG" were public Juris. A passing-off claim had not been established, according to the court, and Subway was not entitled to an injunction due to the alterations made by Infinity Food. As a result, the request for an interim injunction was denied.

References

- SUBWAY LOSES BATTLE FOR INTERIM INJUNCTION AGAINST SUBERB, Banana IP, available at: https://www.bananaip.com/ip-news-center/subway-loses-battle-for-interim-injunction-against-suberb-subway-ip-llc-v-infinity-food-ors/ - Nupur Thapliyal, Subway Can’t Claim Exclusivity Over Word ‘Sub’, ‘Suberb’ Not Phonetically Similar To 'Subway': Delhi High Court, LiveLaw, 16 January 2023, available at: https://www.livelaw.in/news-updates/subway-monopoly-exclusivity-word-sub-suberb-mark-phonetically-similar-delhi-high-court-219078 - Malavika Prasad, What constitutes a trademark violation: Subway vs Suberb in Delhi High Court, Indian Express, 22 January 2023, available at: https://indianexpress.com/article/explained/explained-law/what-constitutes-a-trademark-violation-subway-vs-suberb-in-hc-8394800/ Read the full article

#infringementoftrademarks #Intellectualpropertyrights #IPR #IPRlawsinIndia #LawsinIndia #trademarkinfringement #TRADEMARKS #TRADEMARKSININDIA

[legalupanishad]

Comparative advertising: Trademark Infringement

This article on 'Comparative advertising: Trademark Infringement' was written by Deeksha Kushwaha, an intern at Legal Upanishad.

Introduction

Promoting is an extremely strong instrument for connecting with the overall population. It is one of the ongoing strategies for corporate development. A regular system for advancing one's own products and brands is a correlation. An item or administration is contrasted with one more in relative promoting, either straightforwardly or in a roundabout way. These promotions stick in clients' viewpoints for a more drawn-out timeframe because of the resourcefulness that goes into their visual portrayal. Like the model above, similar publicizing is another showcasing system where the sponsors, with an end goal to increment deals, make misrepresented claims about how much preferable their item is over that of a contending brand. This is generally finished to feature the qualifications between brands utilized by rival organizations that work simultaneously available. In any case, unlawful use and show of another brand could sometimes bring about lawful activities for brand name encroachment. Here, we'll cover a few frequently posed inquiries about examination publicizing, similar to the standards and regulations for such advancements. Do they abuse the analyzed's brand name in any capacity? What is the exemption for brand name encroachment? Is it moral to use or advance one more brand to advance your own?

What is Comparative advertising?

Comparative advertising is a major part of promotions. Promoters overstate the advantages of their items. Whether the exaggerated assertions made by the promoting are genuinely obvious or not is easy to refute. Nonetheless, this is used by advertisers to target individuals and bring in cash. Clients periodically tend to buy things in light of such expanded notices. To stand out for clients, be that as it may, a few notices go past simple puffery and laud the ethics of their item by attracting correlations with practically identical contributions from rival brands. Sponsors who utilize relative promoting go past basically misrepresenting their cases. They utilize their rival's brand name, which is enlisted by the proprietor of that item, to show the labour and products related to that brand. They show how their item is "magnificent," "best," or "comparable to" those of their rivals there, either implicitly or straightforwardly.

What does "trademark infringement" mean?

A brand name is a particular name, logo, image, plan, or any mix of these that fills in as the organization's method for distinguishing proof. Fundamentally, a brand name effectively separates one item or administration from another. In this manner, brand names let shoppers perceive items and their source. The organization's image under its brand name decides its standing. As well as having the sole right to involve his imprint regarding items or administrations, a brand name proprietor likewise has the option to forestall encroachment of his imprint by outsiders. The expression "brand name encroachment" alludes to the infringement of these restrictive freedoms connecting with the items and administrations allowed to the brand name proprietor under the Brand name Act 1999. On the off chance that somebody utilizes your image name for their own benefit without your assent, they might be dependent upon legitimate repercussions under a Brand name Demonstration of 1999 encroachment claim. Fundamentally, encroachment is the utilization of an enrolled mark without approval. There are two parts to encroachment. The main part is the utilization without authorization, and the subsequent part is the utilization of imprints to advantage exploitative ways of behaving unreasonably. Just when a brand name is truly shown or unmistakably demonstrated in a near commercial does a brand name issue emerge. The Brand name Demonstration of 1999 has arrangements in Segments 29 and 30 to shield a brand name from encroachment. Investigate these arrangements.

Comparative advertising: Trademark Infringement

Legislative measures for trademark infringement and comparative advertising

The Brand names Demonstration of 1999's Segment 29(8) characterizes brand name encroachment in publicizing. Visit this page. This arrangement expresses that utilizing a contender's brand name to look at items and disparagingly depicting them in the process comprises both brand name encroachment and similar publicizing infringement. The Brand name Demonstration of 1999's Segment 29 records occasions of brand name encroachment. Nonetheless, the Brand name Demonstration of 1999 gives a special case under Segment 30(1). Visit here. This proviso expresses that using one more dealer's brand name in a manner that is predictable with moral norms, doesn't unjustifiably incline toward the looked-at brand, and doesn't hurt the imprint's standing or peculiarity isn't viewed as brand name encroachment. Therefore, insulting the reputation of that mark, which is harmful due to its unique character, will amount to an unfair trade practice and can result in legal proceedings for trademark infringement if the advertiser uses a competitor's product by showing its mark on their product in the advertisement. Notwithstanding, assuming the advertiser is basically supporting his case about his own item or administration without censuring the contender's item or administration that is portrayed in the business, this will add up to a legitimate practice and is completely lawful. In any case, under the appropriate brand name regulation, there is no meaning of what is a fair practice or an out-of-line business movement. Like the US, India has no regulations that address relative promoting or brand name encroachment welcomed by similar publicizing. Nonetheless, in brand name encroachment cases, our court has habitually concluded from the previously mentioned segments 29 and 30 of the Brand name Act, 1999, that when the utilization of a contender's brand name in the promotion reasonably prompts disarray in the personalities of purchasers in regards to the quality or utility of the item or administrations of that imprint, such use will comprise an encroachment under the Brand name Act 1999, and subsequently, a directive has been conceded on such commercials. Therefore, each case of brand name encroachment achieved by cutthroat promoting should be assessed by its own exceptional realities and conditions.

Comparative advertising concept of unethical and ethical behaviour

Unfair Trade Practice Despite the fact that correlation publicizing isn't explicitly tended to by any resolutions, it is obliged by the possibility of out-of-line business rehearses. Unreasonable exchange rehearses allude to tricky publicizing that presents off-base data and derides the items, administrations, or businesses of different organizations involving the brand name to get an unjustifiable benefit. For example, assuming that somebody utilizes uncalled-for ways of belittling the brand of the opposition to convince clients to purchase their item rather than the one of the opposition, this would comprise out-of-line business rehearses. Prior, Segment 36A of the Syndications and Prohibitive Exchange Practices Demonstration of 1969 (the "MRTP Act") covered unjustifiable exchange rehearses. The Opposition Act, of 2002 later renounced the MRTP Act. In any case, there is no specific reference to unreasonable exchanging rehearses this resolution. After the 2019 Shopper Security Act has tended to this unjustifiable business practice (Customer Assurance Act 1986 preceding alteration). Honest Comparative Advertising Practice Whether a specific business is honest is an inquiry that could go either way. Subsequently, it should be chosen according to the client's point of view. The meaning of a legitimate business movement is one that isn't underhanded and doesn't give the buyer any motivation to end up being confounded. There is definitely no restraint condition. Nonetheless, there are three different ways the Brand name Demonstration of 1999 approves cutthroat ads: - On the off chance that a brand name is utilized genuinely, - Assuming the business is in accordance with moral principles and doesn't unjustifiably profit from the brand's standing. In this way, in any event, when the sponsor's case in regards to its item is bogus, no move can be made against the promoter on the off chance that there are no vilifying references in the ad. Such legitimate utilization of one more party's imprint for business gain, without straightforwardly or by implication impeding that party's standing, will fall under the domain of moral way of behaving. Publicizing fills needs other than advancing a business. It illuminates purchasers about the merchandise, as a matter of fact. Bogus data that misdirects purchasers with respect to the nature of the merchandise is subsequently precluded by regulation.

Suggestions

Using your rivals' brand names to advance your labour and products isn't destructive. Be that as it may, doing so shouldn't go past what is allowed by regulation by disparaging the labour and products of your opponent. You reserve the privilege to advance your image in any case you pick without belittling different brands or taking advantage of them in any capacity. Regardless of whether your broad assumptions are authentically mistaken, you are still completely justified to promote your products in India.

Conclusion

To decide the genuine motivation behind the business, looking at its style and content is vital. Moreover, promoters should ensure that no plan or brand they use in their commercials abuses the standards for legitimate similar publicizing. The main thought while pursuing such choices is the promotion's general effect as seen according to the purchaser's point of view. The Brand name Act's encroachment arrangements, be that as it may, are not comprehensive. The guidelines managing cases of brand name encroachment in different conditions are very confounding. Thus, these issues should be dealt with explicitly as per the current realities and conditions of each example.

References

- Comparative advertising, Lex orbis, 27 March 2019, available at: https://www.lexology.com/library/detail.aspx?g=34b2ff7c-f7c8-47ba-a8c8-55e332b2048e - Parth Gokhale And Shriyani Datta, Comparative Advertising In India: Evolving A Regulatory Framework,4 NUJS L.Rev. 131 (2011). Read the full article

#Comparativeadvetising #infringementoftrademarks #LawsinIndia #trademarkinfringement #TRADEMARKS #TRADEMARKSININDIA

[legalupanishad]

Protection of Domain Name under Trademark Laws in India

This article on 'Protection of Domain Name under Trademark Laws in India' was written by Riya Chaudhary, an intern at Legal Upanishad.

Introduction

These days, IT is crucial to the expansion of the internet. Technology in the information age may be seen as both a blessing and a curse for businesses and people. There have been many cases of cybercrime committed around the world with the intention of damaging companies' reputations by engaging in similar business activities under a similar name. A Domain Name System (DNS) was created to solve this problem. One of the most critical elements of successful online commerce is the domain name. It is regarded as a vital aspect of the company when any firm indulges in an online commercial activity. In the global marketplace, a domain name serves as both a brand name and a promotional tool for a company. There is a lot more to consider when choosing a domain name than just how it relates to a company's online presence. As the volume of online commerce continues to grow, so too does the value of domain names for boosting brand awareness and driving traffic to online stores, all of which may lead to significant financial gains. A company can protect its brand internationally by registering a domain name that no one else can use.

What’s a Domain Name?

One unique identifier for a virtual administrative region is its domain name. Domain names are generated by the DNS according to its own internal rules and outputs (DNS). A domain name is a unique identifier that can be looked up via the DNS. The domain name is the globally unique identifier for an IP resource like a user's computer, a server computer, a website, or any other service accessible over the internet. Only a small fraction of these domains are really available. Among the many types of organisations are government agencies (.gov), educational institutions (.edu), charitable organisations (.org), and commercial enterprises (.com).

What is Trademark?

A Trademark may be a single word, symbol, design, or a mix of these, used to indicate the source of goods or services. Trademark law protects the rights of the original trademark owner by excluding any other parties from using the mark in connection with competing goods or services. Businesses benefit from trademark rules because they allow customers to more easily identify a favourite brand whenever they see that mark on other items. A trademark ensures customers that they will always get the same high quality from the brand they've come to know and trust. Demand for domain names pertaining to certain industries, products, or services has increased in tandem with the explosion of online commerce and marketing. Many trademark infringement cases have arisen because of the rush to register domain names. Some companies, for instance, found out the hard way that the domain name they wanted to use as their well-known brand was already in use. After settling on a domain name, its owner may seek trademark protection to exclude others from using the name in any capacity. Trademark protection in business domain names, however, is not as robust as it is in other contexts.

Domain Name as Trademarks

After meeting all trademark registration requirements, domain names may be registered as trademarks. A domain name may be registered as a trademark if it is distinctive, can be used to differentiate the products or services in question from those of others, and can be trusted to identify the source of the goods or services online. In the Supreme Court case Satyam Infoway Ltd. vs. Siffynet Solutions, the issue of whether domain names may be secured as intellectual property like trademarks came up. There can be little doubt that a domain name's principal purpose was to act as a computer's Internet address, according to the court. But more than ever before, people utilise the internet for both personal and professional purposes. Another purpose for a domain name is as a brand name, particularly in light of the rise of online shopping. Due to these factors, the domain name serves as more than simply an address; it also serves to identify the website and set it apart from the services of other companies. As a consequence, a domain name must be unique in order to be used as an address. This is true in particular when the domain name is connected to a business. As more companies transfer their activities online, domain names have grown more costly and conflicts are more likely to occur.

Trademark Protection Vs. Domain Name Protection

An official designation and legal protection for a trademark or service mark will only be awarded in the nations and jurisdictions where it has been registered. The Internet Corporation for Assigned Names and Numbers (ICANN), the only global registrar in charge of such matters, protects domain names that are trademarks or service marks globally. Anyone body of local or international law cannot ensure that a domain name may be used exclusively in a single jurisdiction. A tight and censorious system of domain name registration via authorised registrars and a highly effective and efficient dispute resolution mechanism, the Uniform Domain Name Dispute Resolution Policy, was developed by ICANN and WIPO to accomplish this purpose. In order to have their problem handled in compliance with the UDNDR Policy, which has been in operation since October 1999, a person or business may submit a formal complaint to one of the certified administration-dispute-resolution services providers . The Complainant has rights in a trademark or service mark that is identical or confusingly similar to one of the domain names at issue; the registration and use of the domain name at issue are evidence of bad faith. There is a demonstrable trademark violation to support the claim. To prohibit the registration of trademark-infringing domain names in bad faith and abusively, ICANN-accredited registrars operate a dispute resolution mechanism under the Uniform Domain Name Dispute Resolution Policy.

Protection of domain names in India

When a domain name is also used as a trademark, it is protected not only at the national and international levels but also by ICANN and the relevant provisions of applicable national trademark law and a variety of international trademark treaties. If a domain name meets all of the conditions for registration under India's Trademarks Act, 1999 (henceforth referred to as "the Act"), then it may be protected as a trademark or service mark (as enumerated above). Once a domain name is registered in India, its owner is afforded the same statutory safeguards and common law rights as those of a trademark or service mark holder. This may include a claim of infringement or passing off. If a person uses a domain name that is already registered as a trademark in India, they would be guilty of trademark infringement under section 29 of the Indian Trademark Law. If the trademark owner is the first user, the mark has become distinctive, and there is a misrepresentation of the trademark owner's products by another party that is likely to mislead the target audience, then the trademark owner is entitled to protection for his mark even if he has not registered his mark. People Interactive (India) Pvt. Ltd. v. Vivek Pahwa & Ors was a passing-off case tried by the Bombay High Court involving the wedding planning websites shaadi.com and secondshaadi.com. The court agreed with the defense's argument that "Shaadi" is a generic term. It was determined by the court that if a word takes on a new meaning, it must have abandoned its original significance and broken all connections to the previous owner of the mark in the eyes of the general public. However, the court ruled that this was not the case since the word "online space" had no other meaningful meaning.

Conclusion

Given this, it's very evident that domain names are crucial components of online commerce. Maintaining control of one's domain name is crucial, especially for companies that operate primarily in the digital realm. Since domain names may be used by anyone in any part of the world, it is important to have consistency.

Reference

- Hemant Goyal and Mohit Porwal (14 July 2014) Protection of Domain Name as a Trademark. https://www.mondaq.com/india/trademark/327272/protection-of-domain-name-as-a-trademark - Protection of Domain Name as a Trademark. https://www.indialawoffices.com/legal-articles/protection-of-domain-name-as-a-trademark - Law Corner. Protection of Internet Domain Name as a Trademark. https://lawcorner.in/protection-of-internet-domain-name-as-trademark/ - Domain name and Trademarks Right in India. https://www.lexology.com/library/detail.aspx?g=daaafca2-6a68-4134-bd29-27aa941a1f03 Read the full article

#infringementoftrademarks #LawsinIndia #Licensingoftrademarks #RegistrationofTrademark #trademarkinfringement #TRADEMARKS #TRADEMARKSININDIA

[legalupanishad]

Starbucks Trademark Infringement: Brownie Chips Frappuccino

This article on 'Starbucks in a Trademark infringement suit over Brownie chips Frappuccino: Facts and Laws' was written by an intern at Legal Upanishad.

Introduction

A trademark is used to distinguish the goods and services provided by one individual or company from those of another. One of several primary legal rights that a trademark owner has is the ability to stop other people from using a trademark that seems to be identical to or misleadingly similar to theirs. This means that a company cannot use a symbol or brand recognition that is identical to one that has been formally registered, especially if the products or services are related in terms of looks, sound, or purpose. For instance, it is forbidden for a producer of carbonated beverages to use a name that sounds similar to Coke. In this article, we will analyse the concept of trademark infringement in light of a recent Starbucks case.

What is a trademark infringement?

Trademark infringement occurs when a third party uses a mark that is identical to or misleadingly similar to one that is already registered. If the violations are properly established, the court of appropriate jurisdiction may impose the following remedies - Ban on using a trademark or an injunction against it; - Damages; - The designation of a local commissioner by the relevant court for the storage or sealing of records and accounts obtained unlawfully. In addition- The court may even go so far as to issue injunctions and order the customs authorities to prevent the infringing material from being transported or disposed of in order to safeguard the owner’s proprietary interest; A request for a temporary or ad interim ex-parte injunction can be made.

Introduction of Starbucks Corporation

Starbucks Corporation, an international American chain of coffee shops and roasting facilities with its own company headquarters in Seattle, Washington, is the plaintiff in this case. Starbucks Corporation operates in accordance with American legal standards. There are locations of the coffee shop chain all around the world. In 1971, its forebear opened its first retail outlet in Seattle, Washington, selling a variety of coffee, tea, and spices under the name Starbucks. Plaintiff was founded as a company in 1985 under the name Starbucks, and in 1987 it opened its first retail location outside of Seattle. Vancouver, British Columbia, Canada, also saw the establishment of a site. Under the registered trademarks of FRAPPUCCINO, Plaintiff markets its wildly well-liked hand-crafted blended cold drinks all over the world. It was also available in containers for purchase. In addition to the 30,626 Starbucks locations throughout the world in 80 countries and territories, this trademark is also used on bottled coffee drinks that are offered for sale in a number of supermarkets, retail stores, and wholesale establishments.

Starbucks in a Trademark infringement suit over Brownie chips Frappuccino

Facts

Plaintiff consented to organise a joint venture with “Tata Coffee Ltd.” For equity. In 2011, “Tata Starbucks Private Limited” was created in order to open commercial stores in India. The plaintiff later launched its first store in Mumbai in 2012 and acquired the trademark “Frappuccino” in India in a wide range of classes. Starbucks complained to the High Court over the “LOL Café” in Jaipur, alleging that the company was misusing the “FRAPPUCCINO” trademark. The mark that the accused utilised was unmistakable and applied without cause. The complainant makes use of this Frappuccino mark with numerous beverage flavours.

History of the case

In 2018, the coffee franchise realised that the café in Jaipur was promoting the “BROWNIE Chips FRAPPUCCINO” without authorization. The menu of the café was also promoted on websites like Zomato and EazyDiner. The plaintiff asserted that during a phone conversation with the defendant’s director, the director agreed to never use the trademark “FRAPPUCCINO,” However, the claimant then discovered that the accused had maintained to utilise the trademark. The Plaintiff has repeatedly sent notices to the Defendants protesting the aforementioned, but no response has been provided. The claimant asks for a decree of a permanent injunction forbidding the violators from using the claimant's registered trademark improperly or falsely. The defendants were subsequently issued a summons in the matter, and the plaintiff was granted an ex parte ad interim injunction. The use of a specific Frappuccino mark by the defendants on any products supplied by LOL Café would be forbidden as a result. The defendants, however, decide not to appear in court or provide a written statement. Both parties claimed in a subsequent appearance before the Joint Registrar that they anticipate the issue would likewise be resolved as a result of their compromise (Judicial). The Plaintiff sought summary judgment against the Defendants in a second application made in accordance with Order XIII-A of the Code of Civil Procedure (1908). In reaction to the abovementioned application, the defendants did not show up or file their response.

Court’s insight

The American multinational corporation’s plea was being heard by Justice Navin Chawla’s single-judge bench. In that case, the Delhi High Court came to the conclusion that Starbucks has "a global reputation in the asserted mark." The High Court noted that Defendant engaged in trademark infringement by applying a mark that was confusingly similar to Plaintiff's mark in an attempt to confuse the market.

The decision of the Delhi High court

The Delhi High Court upheld Starbucks' claim that a café in Jaipur had violated its trademark by using the term "Frappuccino" and awarded the American coffee company a judgment of more than Rs 13 lakh. The plaintiff is entitled to reimbursement for court costs, the judge further declares. A document titled "Advocate Fee Certificate" that details the sum of Rs 13,38,917.85 that the attorney charged as legal fees have also been provided by the plaintiff in addition to paying the court fee should be paid by the defendant’s owner.

Conclusion

It’s fascinating and useful to learn about trademark infringement litigation involving well-known corporations. Use the above-explained Starbucks case as a reference before registering your trademark if you intend to make absolutely sure that it’s adequately protected against infringement.

References

- Harsha Asnani (May 26, 2016 ) What Is Infringement Of Trademark available at https://blog.ipleaders.in/what-is-infringement-of-trademark/ - Priyanshi Aggarwal( Nov 22, 2022)HC rules in favour of Starbucks in a trademark infringement suit over “Brownie Chips Frappuccino” available at https://www.latestlaws.com/case-analysis/hc-rules-in-favour-of-starbucks-in-a-trademark-infringement-suit-over-brownie-chips-frappuccino-read-judgment-192186 - Express News Service (November 23, 2022 10:26:17 am)‘Frappuccino a Starbucks trademark’: Delhi HC rules against Jaipur-based café available at https://indianexpress.com/article/cities/delhi/starbucks-vs-lol-cafe-delhi-hc-awards-litigation-costs-13-lakh-starbucks-jaipur-cafe-infringing-trademark-8284292/ Read the full article

#infringementoftrademarks #Intellectualpropertyrights #IPR #IPRlawsinIndia #LawsinIndia #trademarkinfringement #TRADEMARKS #TRADEMARKSININDIA

[legalupanishad]

Discover if Google AdWords infringe Trademarks

This article on 'Does Google AdWords infringe Trademarks?' was written by Samar Jain an intern at Legal Upanishad.

Introduction

A trademark is a type of Intellectual Property Right(IPR), Intellectual Property is a form of property that cannot be touched or seen but has the characteristic of being felt and hence intangible. On the other hand, a tangible form of property is that property that can be felt, seen, and touched. The Rights which are connected with Intellectual Property are known as Intellectual Property Rights(IPR). Google AdWords also known as Google Advertisements is a form of advertisement wherein keywords are utilized. Once the keyword has been entered, it lands the user on a page where the related products and services are offered.

Google AdWords and Trademark

Google Ads/AdWords is a platform in an online format which is developed by google where promoters offer to exhibit concise ads, services offered, and listing of various products or videos to the users of the web. The ads usually are placed on the results obtained via the Search Engines and also via non-search methods like videos, mobile applications, and websites. These services are offered using the Pay Per Click Pricing model. It is through the medium of Google Ads that Alphabet Incorporation (The Parent Company of Google) earns its major revenue. The system of Google Ads is based upon two things: It is partly dependent upon the usage of Cookies and partly dependent upon the advertisers. These things are used by google to place ads on those pages it might think are appropriate and pertinent. The Advertisers pay when the user gets diverted to the advertising and clicks on it. The Advertisements can be implemented either at the Local/National/ International Level. The status of an advertisement as regards its Family Status is determined by an assessor and is indicative of who is the appropriate target audience. The implication of this is that it affects the appearance of an advertisement about when, where, and in which country. Over time, restrictions on the advertisements for the sale of hard alcohol and liquor have decreased. There are some absolute restrictions on the advertisement of some keywords such as Hacking. In June 2007, there came a landmark decision where Google AdWords concerning student essay writing services was banned. Google has keywords that are prohibited and differ from the type of prohibition and country. A trademark is a visual symbol in the form of a word, device, or label applied to articles of commerce to indicate to the purchasing public that they are goods manufactured or otherwise dealt by a particular person as distinguished from similar goods manufactured or dealt by other persons. The unique feature of the term of protection of trademark is that the protection is granted for perpetuity. It is initially granted for a term of 10 years and then it is renewed after a fixed period and thus used for an indefinite period unless there is a court order prohibiting the same or it has been removed from the register of trademarks.

Google AdWords and Trademark Infringement

Google has time and again been criticised for allowing advertisers using AdWords to offer services on the trademarked words. It all began in 2004 when google allowed in the United States and Canada advertisers to offer a wide variety of search terms which also includes using trademarks of their competitors. Later on, in 2008 this service was expanded to include the United Kingdom and Ireland. Advertisers are ideally restricted from the usage of trademarks of other companies when they are advertising if the trademark has been registered with Google’s Advertising Legal Support Team. In 2010, Google was again in the news of a suit of trademark infringement that involved 3 companies of French Origin that owned the Trademarks of Louis Vuitton. The main question was whether google was to be held responsible for the trademark infringement that the advertisers had purchased keywords or not. It was finally ruled that the European Trademarks Laws were not breached and the breach will depend upon a case-to-case basis. In 2013, the Tenth Circuit Court of Appeals held Lens.com to be not violative of trademark infringement when it had purchased the AdWords and other search advertisements of its competitors 1-800 Contacts registered trademark at the federal level when it purchased the keyword in the case of 1-800 Contacts Inc vs Lens.com Inc. Over the years Google by letting advertisers buy keywords that are registered trademarks has indeed committed trademark infringement. However, it is done in such a manner that when a court case is filed against google, google is acquitted of any wrongdoings. However, the methodology it uses is a bad practice as it directly reduces the business of the competitors as the normal public is not expected to know what words are trademarked and by whom. So quite naturally, if an advertisement is put in front of the public when it streams on the internet, it will naturally be attracted to that advertisement. The usage of Cookies is also integral to the same and thus Google does infringe on Trademarks. Keyword advertising using search engines through keyword research is the most common method employed by businesses to increase their internet existence. The issue arises when a trademark that is registered is used as a keyword by an intermediary to provide linkage to its website to promote its goods and services. What happens is that it confuses the minds of the consumers as to who is the genuine manufacturer of the goods and services offered and who is not. This defeats the whole purpose of obtaining a trademark for goods and services. It is often said by the holders of the trademark that letting a competitor use their trademark as a keyword lets the competitor obtain an unfair, unjustified advantage over the actual trademark holder. As per the European Union(EU) Court of Justice, there exists a difference between providing a keyword that is closely related to the trademark which is already registered for advertisement, and usage of a trademark when doing business. The Court had also ruled that this methodology is not violative of The TM Directive 1989. This statute was later replaced by The TM Directive 2008. However, Google has updated its policy on AdWords based on the rulings of the European Court of Justice. It now provides a form through which the owner of a trademark who is dissatisfied with the protected keywords can submit the same to google. Google through this mechanism helps to restrict the use of a trademark for advertising. However, there are certain exceptions for the same, and are as follows: - New Zealand - Australia - Canada - United Kingdom - United States. The exception lets the trademark be used for advertisements in an official, sanctioned, lawful manner on the reseller and informational websites. The trademark for advertising will be allowed to be used if the products listed in the ad are the same products that are available on the same landing page. If the trademark owner has authorized the usage of his trademark through the submission of Google’s form of authorization, it can be used in other advertisements as well.

Discover if Google AdWords infringe Trademarks With the rise in the volume of business and transactions which happen on Google, it has developed stringent policies for advertising, which if not followed face legal action. The policies are as follows: - Content that is Prohibited. - Practices that are Prohibited. - Content and Features which are Restricted. - Content of Editorial and Technical Standards. The most up-to-date example of trademark infringement for advertisement is the case of the MakeMyTrip vs Booking.com trademark. In this case, it was contented by MakeMyTrip that whenever someone searched for its company on Google, the first link which was shown was Booking.com. Upon revision, it was found that Booking.com was using the trademark of MakeMyTrip for the promotion of its brand. Booking.com used this technique to quickly establish itself and gain a reputation at the expense of MakeMyTrip as the latter is already a well-established name in the travel booking space in India. The result of the lawsuit was that Booking.com is now forbidden from the usage of the trademark of MakeMyTrip as a keyword in Google Advertisements. This has not only affected Booking.com financially but has also affected its reputation and image. This decision has set a strong precedent and will help to discourage other businesses to use brand names or trademarks to gain popularity among consumers.

Conclusion

Finally, it can be said that there are no two opinions on the fact that the usage of keywords for advertising is an effective mechanism and tool for e-advertising as it helps target consumers and customers in real time. However, it is also worth knowing that advertising through keywords and infringement of a trademark is a concept that is still in its nascent stage. Hence there are no specific rules and regulations which govern advertising through keywords. Some measures are available to the party who has infringed the trademark using keywords such as proving that sufficient measures have been taken to avoid confusion. There is a famous saying that with great power comes much greater responsibility. Today google is the guardian and has the responsibility of safeguarding the millions of people who transact through google. Google today has realized after its multiple lawsuits that even it can be held accountable although it is just an intermediary. It is important for the advertisers that use google that while Google Advertisements are helpful for the growth and promotion of their brand, they must also keep in mind that failure to abide by google policies will lead to court cases that go on and on for months. Thus while using Google Ads for brand promotion be sure to pay attention to its policies and how will they affect you.

List of References

- Google AdWords, India, available at: https://en.wikipedia.org/wiki/Google_Ads#cite_note-6 (Last Modified October 30, 2022) - Use of a Trademark as a Keyword on Google Ad Infringement or Not, India, available at: https://www.mondaq.com/india/trademark/1192864/use-of-a-trademark-as-a-keyword-on-google-ad-program-infringement-or-not (Last Visited on October 30, 2022) - Google AdWords and Trademark Infringement, India, available at: https://www.upcounsel.com/google-adwords-trademark-infringement (Last Visited on October 30, 2022) - Google AdWords and Trademark Infringement, India, available at: https://www.thehindubusinessline.com/business-laws/google-ads-and-trademark-infringement/article65488108.ece (Last Visited on October 30, 2022) Read the full article

#infringementoftrademarks #trademarkinfringement #TRADEMARKS #TRADEMARKSININDIA

[legalupanishad]

Trademarks: Infringement, Remedies, & Landmark Cases

This article on 'Trademarks: Infringement, Remedies, & Landmark Cases' was written by an Intern at Legal Upanishad.

Introduction

Trade Secrets are protected by intellectual property (IP) rights that can be licensed or sold. Generally speaking, information must meet the following criteria to be considered a trade secret: - have commercial value due to its secrecy; - be known only to a small group of people; and - be subject to reasonable security measures taken by the rightful owner of the information, including the use of confidentiality agreements for business partners and employees. This article will mostly address what a trademark is, how to prevent trademark infringement, and the civil, administrative, criminal remedies and the Landmark Judgement of 'Coca-Cola Company vs. Bisleri International Pvt. Ltd'. If it is made public, the law can help safeguard it. Patents, copyright, and trademarks all provide legal protection. Business names, logos, slogans, and other items can be protected under trademark law.

WHAT IS A TRADEMARK?

Business names, logos, slogans, and other items can be protected under trademark law. Names and logos are the most popular types of items that may be registered as trademarks. Anything that enables customers to tell your products or services from those of another is considered a trade mark. Think about Intel and you'll hear a specific jingle; think of Nokia and you'll see two people holding hands and hear its catchy music. Additionally, trademarks can be registered for sounds, colours, and forms. One of the reasons why these less common trademarks are less frequent is because they are more difficult to register. A trade mark needs to be distinctive to prevent confusion with a mark that has already been registered. Additionally, it cannot be descriptive; for example, your new trainer brand cannot be called "sports shoes." The name Pluma would also be inappropriate since it may be mistaken for Puma. You run the risk of later learning about a company with a similar name or even getting a letter ordering you to stop using your mark because it infringes on the rights of someone who has already registered a trade mark if you begin using a logo or name without first registering it as a trade mark and without first making sure it is free to use.

WHAT IS TRADEMARK INFRINGEMENT?

The Trademarks Act of 1999 protects trademarks. This act's sections 28 and 29 discuss rights granted by registration and trademark infringement, which deal with the unlawful use of a trademark, respectively. When someone uses a mark that is not his and the name or logo is extremely close to the one who made it, it is an infringement. It is so identical that it confuses customers and gives them the idea that they can't even tell various items apart effectively.

REMEDIES FOR TRADEMARK INFRINGEMENT

Both registered and unregistered trademarks can be violated through the use of remedies. In the former scenario, it serves as an action to begin the legal processes for infringement, but in the latter scenario, it aids in shifting the legal responsibility for the violation to common law. CRIMINAL REMEDIES Police can file an FIR and launch an investigation since trademark infringement is a cognizable violation. Criminal penalties for trademark violations are uncommon. As follows: - According to Section 103, the minimum sentence is six months and it can be increased to three years. - Additionally, Section 104 mentions a fine of 50,000 rupees, which may be increased to 2 lakhs. - While Section 105 discusses the expanding form of punishment made available by this statute, - As a criminal remedy for an effective adaptation to the aforementioned rules, the authority of the person responsible for the violation may be seized. Only reasonable evidence of an infraction will support the police's use of this technique. CIVIL REMEDIES The Trade Marks Act of 1999 specifies the number of legal remedies available to those whose trademarks have been violated. As follows: - A frequent civil remedy that can be offered is an injunction or authoritative directive from a court of law. Perpetual injunctions and temporary injunctions are the two types of injunctions that may be obtained. - A perpetual injunction is given based on the case at hand and when a decision is expected, therefore it has a permanent aspect. In the event of a temporary injunction, a certain period is taken into account, in this example, the period until the court makes its final rulings on the subject. - Under Order 39 Rules 1 and 2 of the Code of Civil Procedure, the same might be requested. This effectively defeats the lawsuit's intended outcome and permits the defendant to continue using the mark in a manner that is similar to that of the plaintiff. - The court may require the infringer to take certain actions to restore the reputation of the infringement's company. This might be accomplished by publicizing his apologies or taking steps to restore the consumers' confidence. - The harmed party may seek damages because his or her business has suffered losses as a result of losing the exclusive right to use the trademark that he or she owns. - Handling the profit accounts and issuing a directive for the delivery or removal of the infringing goods is a legal remedy that is frequently requested. ADMINISTRATIVE REMEDIES Criminal remedies are often seen to be far more pertinent than civil remedies. Administrative remedies are another option for stopping trademark infringement, in addition to civil and criminal sanctions. Below is a list of the treatments that fall under different categories of administration: - Through the use of Sections 9(1) or 11 of the Trade Marks Act, 1999, to oppose a mark that is confusingly similar to the original mark. If such a circumstance occurs, the examiner of the trademark registration conducts inquiries. After the registration process is complete, a third party will always file a trademark opposition, contesting the already-registered mark in the trademark journal. - Correcting a trademark that has already been registered is another technique to carry out administrative remedies. This helps to clear up trademark uncertainty in a sense. - Because the remedy is administrative in character, it is implemented by monitoring the commercial activities of the items bearing the infringing trademark. Therefore, to prevent hesitation, the import and export of items that are marked with a trademark that is fraudulent by nature are both prohibited. These three administrative remedies are frequently helpful in avoiding trademark infringement.

Trademarks: Infringement, Remedies, & Landmark Cases

LANDMARK JUDGEMENT

The Delhi High Court was adamant in the well-known case of The Coca-Cola Company vs. Bisleri International Pvt. Ltd. that if there is any degree of infringement, then the court's jurisdiction is likely to be present to consider the relevant litigation. The misunderstanding caused by the brand name MAAZA being misidentified as belonging to the defendant's firm rather than the plaintiffs' corporation led to the case's resolution. Both domestically and internationally, the defendant utilized the trademark. Additionally, the plaintiff asserted losses incurred by the business by filing for a permanent injunction. The court imposed an interim injunction against the defendant after concluding that the defendant is liable for trademark infringement as a result of using the brand outside of what is allowed.

CONCLUSION

In India, the demand for trademark registration is steadily increasing, which shows how conscious individuals are becoming of the need to protect their products. Nowadays, trademark infringement is a widespread occurrence. Even if there are various solutions to deal with the issue, not all of them are used properly. The legislation at hand is ultimately hampered by loopholes in every technique used to stop violations. Any type of trademark violation hurts the person or the entity and lowers the brand's value. In addition to direct infringement, there can also be indirect infringement. Even if there are no rules that address indirect infringement, there are nonetheless obligations under the universal law concept. Therefore, a little bit of awareness among people is needed to prevent any form of infringement on their product and quickly overcome it with legal assistance and instruction.

REFERENCES

- 'What are the Remedies of Trademark Infringement in India?' (Registration wala, 23 April 2022) accessed at 6/07/2022 - Coca-Cola Company vs. Bisleri International Pvt. Ltd - Essenese Obhan and Taarika Pillai, 'Selecting The Best Remedy For Trademark Enforcement In India' (Mondaq, 15 July 2020) https://www.mondaq.com/india/trademark/965594/selecting-the-best-remedy-for-trademark-enforcement-in-india accessed at 6/07/2022 - 'Trademark infringement and its remedies' (Law Circa, 20 December 2020) https://lawcirca.com/trademark-infringement-and-its-remedies/#:~:text=Atrademarkiscapableofdistinguishingthegoodsorservice,toaddvaluetoproducts. accessed at 6/07/2022 Read the full article

#infringementoftrademarks #Intellectualpropertyrights #IPR #IPRlawsinIndia #LawsinIndia #trademarkinfringement #TRADEMARKS #TRADEMARKSININDIA #legalresearch #legalarticles #legalupdates #assignmenthelp #lawassignmentwritinghelp

[legalupanishad]

Trademark Infringement: Everything you need to know!

This article on 'Trademark Infringement: Everything you need to know' was written by Shruti, an intern at Legal Upanishad. (Book your Law Assignment at Legal Upanishad.)

Introduction

This article will focus on what is a trademark, and trademark infringement remedies against trademark infringement and it will also discuss if civil remedies are effective. It can be anything and they get to decide how, where it can be used or who gets to use it and who can get profits from it. The creators to keep their intellectual property safe from misuse. Law plays a role in protecting it if it is made public. Legal protection is given by patent, copyright, or trademark. Under trademark things like business names, logos, slogans, etc. can be covered.

What is a Trademark?

A trademark is a logo, number, word, or combination of words, phrases, or symbols. It can be used by an individual, legal identity, or business organization. It is used to distinguish one’s product or symbol from other people’s products or symbols so that they can’t copy it. Only the people who created that product will have exclusive rights to it. No one can make anything similar or identical to it. Law can protect one’s trademark if it is registered. A specific symbol is used for the trademarks that are registered to distinguish itself from others. This helps the consumers to recognize the source, and quality and make the right decision to purchase.

What is Trademark Infringement?

The trademarks are protected under Trademarks Act, 1999. Section 28 of this act talks about rights conferred by registration, section 29 describes trademark infringement, which deals with the unauthorized use of a trademark. It’s an infringement when anyone uses a mark that is not his and the logo or name is very similar to the one who actually created it. It is very similar to the extent where it confuses consumers and creates a false impression that they can’t even differentiate things properly.

Remedies against Trademark Infringement

Remedies are the solution for the infringement of both registered and unregistered trademarks. Trademark law signifies criminal, civil, and administrative remedies to fight against infringement. These remedies can be adopted by the facts and circumstances of the case at hand. Civil Remedies Against Trademark Infringement Civil remedies can be enforced by filing a suit in a competent court. These are the forms of relief available: Injunction: The injunction means stopping a person from doing certain activities which bring danger to a property being wasted, damaged, or wrongfully sold in execution of a decree. It is a restriction of a person from doing things which he is not authorized to. Perpetual injunction: It is a final order that restrains the defendant for all times, totally, from doing any act which infringes the right of the other person. Temporary injunction: Discretionary relief is offered to the plaintiff which prohibits any act of a party until the final order is passed. Anton Piller order: This allows the plaintiff to enter into the premises of the defendant and inspect relevant documents and articles and also allows them to make copies or remove them. There are few conditions to make such an order. Firstly, there should be strong prima facie in favour of the plaintiff or if such order is not passed there might occur irreplaceable damage or there must be strong proof that the defendant would clear the evidence by destroying the documents or articles. There is no need for the notice of the application to the defendant. Marvena injunction: This order freezes the defendant’s assets until the trial ends. This can be applied if the assets of the defendant get cancelled, and then the judgment against him can be unenforceable. Damages and account of profits: Damages can be monetary compensation, given to the aggrieved person as the trademark he owned has been ceased by an unauthorized person which led him to suffer losses. The damages will be granted after looking into the actual loss of the owner. The compensation can be more than the loss suffered by the person. In the account of profits, the infringer is required to give up the gains which he took from the owner. The plaintiff can be granted either damages or an account of profits but not both. Destruction and sealing of material: The court may appoint a local commissioner to seal the infringed material and account. It might order to destroy the infringed materials completely or to deliver the products that are infringed before the court. Recovery of reputation: To restore the reputation of the business of the infringed person, the court may order the infringer to take a few measures. This can be done through advertising his apology or doing something that will bring back the faith of the consumers. CRIMINAL REMEDIES Against Trademark Infringement: As trademark infringement is a cognizable offence, police can file FIR and start an investigation. There are few criminal remedies for trademark infringement. They are: - Section 103 enforces a period of six months of imprisonment which can be extended to three years, - and Section 104 lists a fine of fifty thousand rupees which can be extended to two lakhs. - While Section 105 talks about the inflating version of punishment provided under this act. ADMINISTRATIVE REMEDIES Against Trademark Infringement: There are a number of administrative remedies available against the Trademark Infringement. The administrative remedies against the Trademark Infringement are as follows: Opposition against a similar mark: Any person who has been infringed and believes that the published trademark creates confusion among the consumers. Then can oppose the mark within four months from the date of publication. After both parties submit their evidence decision is taken if the trademark is registered. Rectification of a registered mark: An aggrieved party can file for the removal of the registered trademark. If he believes that the mark is not supposed to be in the register. A mark is registered wrongly even if it’s not used, expired, or registered without the knowledge of the mark which was already present. In such cases, a procedure given by the act can be followed to rectify it. Export or import: It prevents the export or import of good that has infringed trademark.

ARE CIVIL REMEDIES EFFECTIVE Against Trademark Infringement?

Among the three remedies, civil remedies are one of the important ones and have an effective form of remedy available. It clearly, helps the person who is infringed on. Also, gets him justice which makes people believe in the law and file a suit in the court. Recovering the damages is the main objective of civil litigation. Legal action is initiated as soon as possible against the infringer. In order to establish the seriousness of the rights carried by the trademark holders. Nowadays courts have started imposing damages as financial penalties to make sure that intellectual property rights are not violated. But, awarding high damages is not the goal, as recovering actual damages from the infringer is more important. The court has become liberal in granting large damages than recovering the sum from the infringer. This weakens the effectiveness of the remedy considerably.

SUGGESTIONS:

- Simply granting high damages is not enough for this infringement to stop. Filing a suit for trademark infringement is a long and expensive process. Not everyone who infringed did it with knowledge, some do it by mistake. So, awareness should be made among people that, creating something similar to someone else’s mark is against law and is punishable. - Though it is not compulsory to register their trademark under the law. There are remedies for both registered and unregistered trademarks. It is suggestible for one to register it as law can help them recover proper damages without much difficulty.

CONCLUSION:

Remedies for infringement of a trademark are available in three forms. They are civil, criminal, and administrative. These remedies are available only for registered trademarks. People who have their trademarks registered, get proper damages or profits. Whichever is applicable without much difficulty when compared to unregistered trademarks. As infringing a trademark is cognizable offence police can file an FIR and start an investigation as soon as possible. Along with direct infringement, indirect infringement is also there. Though there are no provisions for this, it is still liable under the principle of universal law. Civil remedies to be more effective could concentrate more on recovering the proper sum from people. We could conclude by saying that there are proper remedies available. People could register their trademarks and recover their damages or profits from infringers.

REFERENCES:

- Oishika Banerji. (2020, May 29). Remedies available for Trademark Infringement. Retrieved: https://blog.ipleaders.in/remedies-available-for-trademark-infringement/ - Essenese Obhan & Taarika Pillai. (2020, July 13). Selecting the best remedy for Trademark Enforcement in India. Retrieved:https://www.mondaq.com/india/trademark/965594/selecting-the-best-remedy-for-trademark-enforcement-in-india - Prachi Prajapati, C.S. (2018, April 25). Trademark Infringement and Remedies available to the owner. Retrieved: http://www.elgalwiz.in/blog/trademark-infringment-and-its-remedies - Ritik Kumar. (2020, December 20). Trademark Infringement and its Remedies. Retrieved: https://lawcirca.com/trademark-infringement-and -its-remedies/ - Sakshi Sharda. (2020, April 21). Trademark Infringement: Meaning, Types and Remedies. Retrieved: https://corpbiz.io/learning/trademark-infringement-meaning-types-and- remedies/ - . (2020, June 5). Remedies for Infringement and Passing off of trademark || Trade Mark Act, 1999 || . Retrieved: https://www.youtube.com/watch?v=zgZ7HKuOQJo&ab_channel=Lawnotesfor4u Read the full article

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