Tag Archives: trademark infringement

Contemplating effectiveness of proposed amendments to Drugs and Cosmetics Rules in tackling the menace of deceptively similar trademarks

Trademark infrignement

The problems faced by brand owners and consumers who deal with trademarks that are identical or deceptively similar are well known. In most such cases, consumers may be end up buying one product thinking its another, leading to inconvenience. However, when such confusions occur in pharmaceutical products, it may not just be a matter of inconvenience, but could have far reaching consequences. This very problem of pharmaceutical products marketed under trademarks that are confusingly similar is sought to be addressed in India by an amendment proposed to the Drugs and Cosmetics Rules, 1945.

The proposed amendment may be attributed to the directions given by the High Court of Delhi in a suit 

between Curewell Drugs & Pharmaceuticals and Ridley Life Science, although Indian courts have dealt with many cases involving drugs bearing confusingly similar names. The draft proposes to introduce the below recited rules to address the issue of drugs bearing confusingly similar names.

“In case the applicant intends to market the drug under a brand name or trade name, the applicant shall furnish an undertaking to the licensing authority that such or similar brand name or trade name is not already in existence so that the brand name or the trade name to be used by the applicant shall not lead to any confusion or deception in the market.”

It is pertinent to note that, Section 17B of the Drugs and Cosmetics Act, 1940 empowers the drug licence granting authority, Drug Controller General of India (DCGI), to raise objections in case of drugs bearing confusingly similar brand names, which is also pointed out by the Court. In view of said section, it is not clear how the proposed amendment to the Rules further empower DGCI to proactively tackle the problem.

One may argue that it is not the lack of provisions in appropriate statutes to deal with the problem, rather it is the lack of procedures and infrastructure to effectively implement the provisions, that has led to the problem not be effectively addressed. The Court in fact recognises this and has issued directions for consideration by the authorities to tackle the problem effectively. The directions are listed below.

  • Creation of a secured platform, to be under the supervision of the DCGI, which is accessible to all State FDAs, both for access of data and for uploading of data.
  • Creation of a “master electronic database” of all the approved brand names for manufacture and sale of drugs issued both by the DCGI and the State FDAs and making the same available to all state FDAs and Drug controllers through a secured platform. The list to be maintained and made available both brand wise and manufacturer wise, on the secured platform.
  • List of registered trade marks under Class 5 for pharmaceutical and medicinal preparations be obtained from the Controller General of Patents, Trade marks and designs and be made available to the approving authorities at the Central level and State level.
  • Access to the data be given to Drug Inspectors/Drug Controllers across the country;
  • Drug Inspectors/Drug Controllers to conduct regular and periodic inspections as per the Act and the Rules to ensure that the drugs that are being manufactured in a particular unit are duly licensed for. The reports of the said inspections to be submitted through the secured platform;
  • Periodic and regular reports of drug inspectors should be compulsorily submitted to the respective licensing authorities on the secured platform and a mechanism be set up for review of the said reports at the State level;
  • Periodic meetings ought to be held at the central level, to review the status of manufacture and sale of drugs across the country, under the aegis of the DCGI;
  • Strict action in accordance with law ought to be taken against those manufacturers who manufacture drugs without licences, who indulge in adulteration or contamination of drugs etc. A periodic report as to the number of actions taken, ought to be uploaded on the secured platform of the DCGI.    

Implementing procedures and developing technology platforms in line with the directions above is certainly the way forward if the authorities wish to tackle the problem proactively and effectively. We certainly hope that such long-term solutions, though time consuming and resource intensive, are implemented, given the serious consequence that may result from the problem of drugs being marked under deceptively similar trademarks.

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Burger King Corporation vs Techchand Shewakramani & Ors

The plaintiff (Burger King) is a US based Company while the defendants (Techchand Shewakramani) are based in Mumbai.

The Plaintiff sought permanent injunction against the defendants with respect to their trademarks “Burger King” and “Hungry Jacks” in the Delhi High Court.

The Defendants filed the present application praying for the rejection of the plaint on the grounds of lack of cause of action and lack of territorial jurisdiction.

The defendants contended that the Delhi High Court did not have the jurisdiction to entertain the suit, given Section 134 (2) of the Trade Marks Act which reads as follows:

“Suit for infringement, etc., to be instituted before District Court.—

(1) No suit—

(a) for the infringement of a registered trade mark; or

(b) relating to any right in a registered trade mark; or

(c) for passing off arising out of the use by the defendant of any trade mark which is identical with or deceptively similar to the plaintiff’s trade mark, whether registered or unregistered, shall be instituted in any court inferior to a District Court having jurisdiction to try the suit.

(2) For the purpose of clauses (a) and (b) of sub-section (1), a “District Court having jurisdiction” shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or any other law for the time being in force, include a District Court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or proceeding, or, where there are more than one such persons any of them, actually and voluntarily resides or carries on business or personally works for gain. Explanation.—For the purposes of sub-section (2), “person” includes the registered proprietor and the registered user.” (emphasis added)

The plaintiffs have not only invoked section 134 of the Trade Marks Act, but have also relied on Section 20 of the Civil Procedure Code.

“Section 20: Other suits to be instituted where defendants reside or cause of action arises.

Subject to the limitations aforesaid, every suit shall be instituted in Court within the local limits of whose jurisdiction-

(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or

(b) any of the defendants, where there are more than one, at the time of the commencement of the suit actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises.”

On examining various precedents on the issue, the Court has concluded that either Section 20 of CPC or Section 134 of Trademarks Act can be invoked when it comes to deciding the jurisdiction for initiating a trademark infringement suit. In other words, the referred section of both the statutes don’t override each other, instead they complement each other, thereby allowing the plaintiff to explore multiple options while deciding on the court in which the suit may be filed. Similarly, the CPC provision can also be invoked for initiating copyright infringement suits.

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Glenmark Pharmaceuticals Ltd. Vs Galpha Laboratories Ltd. & Ors

Law gavel on white.

In an unprecedented order, the Bombay High Court has imposed that the infringing party to a suit, i.e., Galpha Laboratories Ltd., pay a sum of Rs. 1.5 Crores as cost.

The Court came to this conclusion after noting that Galpha Laboratories was a habitual offender and they had had multiple suits of infringement against them. Added is the fact that in 2017, the Central Drugs Standard Control Organization (CDSCO) had published a list of drugs which were “Not of Standard Quality/Spurious/Adulterated/Misbranded”. Five products on that list belonged to Galpha Labs. In this light, the Court observed that Galpha had no respect for the law and was a repeat offender.

The court noted that the present case was a perfect example wherein pharmaceutical companies had their judgment clouded by profits and turnovers which resulted in acts that were detrimental to the public health/good.

Thus, when the Court imposed the heavy damages, it noted that had Galpha Labs been penalised heavily in its earlier acts of infringement, it would have acted as a dissuasive measure for future acts.

This order of the Court highlights the seriousness of the Judiciary with respect to the protection of Intellectual Property, and the gradual development from penalty to punitive justice.

The purpose of punitive remedies/justice is that the offender should pay for his crimes in a manner that is proportionate to the offence.

Galpha Laboratories had amassed huge profits through repeated infringement of popular brands of medical goods. Despite various courts orders, they were audacious enough to continue with the acts because the fines/penalties imposed by the courts were a mere slap on the wrist as compared to the “illegal” profits they were making by duping the general public.

The present judgment hereby comes with a hope that pharmaceutical companies would think twice about branding spurious goods under infringing trademarks. The damages imposed upon the infringer is an actual deterrent factor not just for the infringer in the present case but for other companies engaging in such acts.

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Deceptively Similar Marks: Registration Allowed If Services/Goods are Different Although Within the Same Class

Desktop

Brief Facts of the Case

Karnataka Co-Operative Milk Producers Federation Ltd. (KMF), has been producing and selling milk and milk products, since 1985, under their mark ‘NANDINI’ which had been registered under Class 29 and Class 30.

M/S. Nandhini Deluxe is in the business of running restaurants since 1989 under the name ‘NANDHINI’ and had applied for the registration of the same.

The Deputy Registrar of Trade Marks had the application submitted by the restaurant chain and allowed for the registration for their mark ‘NANDHINI’ as well. The Intellectual Property Appellate Board (IPAB), however, set aside Deputy Registrar’s order, and the High Court confirmed the IPAB’s decision on the following grounds:

  • The mark ‘NANDINI’ (KMF) had acquired a distinctive character and was a well-known mark;
  • Products sold under the infringing mark ‘NANDHINI’ (Restaurant) were of the same classes as those under ‘NANDINI’ (KMF).
  • The use of the infringing mark is different only in one alphabet but with no difference in spelling or pronunciation in the local language and would very likely to cause confusion in the minds of public if allowed to be registered for the commodities falling in the same class;

In 2015, the proprietors of ‘NANDHINI’ (Restaurant) appealed to the Supreme Court against the decision of the High Court.

Arguments by the Parties:

Proprietors of ‘NANDINI’ i.e. KMF objected to the use of the mark ‘NANDHINI’ by the Appellants (Restaurant) on the grounds that:

  • It was deceptively similar to the mark of the respondent and was likely to deceive the public or cause confusion.
  • KMF had long and sustained use by the ‘NANDINI’ and had acquired a distinctive character and was well-known to the public.
  • The public associates ‘NANDINI’ with ‘NANDHINI’ because of phonetic similarity.
  • ‘NANDHINI’ was adopted by the restaurant chain to ride on the goodwill of trade mark ‘NANDINI’ (KMF).

Proprietors of ‘NANDHINI’ Deluxe objected that:

  • It was running the business of restaurant since 1989 and KMF had started using mark ‘NANDINI’ since the year 1985 only for milk and milk products and not for other products.
  • Goods and services of ‘NANDHINI DELUXE’ were totally different from that of the KMF and, therefore, there was no likelihood of confusion or deception among the public.
  • The monopoly under a Trademark only extends to the goods which are falling in a particular class and not the entire class of goods and the trade mark which is similar in nature can be registered for the goods which are falling within the same class but are not identical to those of the previously registered mark.

Court’s Ruling:

The Hon’ble Supreme Court granted the registration of the mark ‘NANDHINI’ by the restaurant on the condition that registration will not be given to them for milk and milk products.

The court relied on the following reasoning to determine whether a similar trade mark in respect of similar goods would cause deception and confusion in the minds of the users:

  • While the goods of both parties fall under the same classes (i.e. 29 & 30), the goods of the parties differ from each other.

One (NANDINI) was concerned with the production of only milk and milk products while the other (NANDHINI) dealt in fish, meat, poultry and game, meat extracts, preserved, dried and cooked fruits and vegetables, edible oils and fats, salad dressings, preserves etc. Furthermore, ‘NANDHINI’ had also relinquished its claim for milk and milk products.

  • The nature and style of the business of the appellant restaurant and the respondent federation were altogether different. One (NANDINI) was a manufacturer of dairy products while the other (NANDHINI) ran a full-scale restaurant business.
  • There’s mere phonetic similarity as far as the word marks are concerned (i.e. NANDHINI/NANDINI). However, the trade mark with logo adopted by both parties are different.

The restaurant chain uses the word ‘NANDHINI DELUXE’ which is followed by the tagline ‘the real spice of life’ and a device of a lamp accompanying these words.

On the other hand, the milk federation only uses the word ‘NANDINI’ beneath a ‘Cow’ logo and is encircled by egg shape circle.

  • There is a difference in not just the visual appearance but even in their products. The manner of business is different. All of these factors make it difficult to imagine that an ordinary man would associate the goods of the Restaurant as that of the Milk Federation.
  • The restaurant had applied the trademark ‘NANDHINI’ in respect of goods which are used in the products/services of restaurant business. Said items do not strictly belong to Class 29 or 30. Other items necessary to run their business or render their services include stationery, furniture, utensils and crockery all of which do not fall under class 29 or class 30.

To quote the SC:

“One other significant factor which is lost sight of by the IPAB as well as the High Court is that the appellant is operating a restaurant under the trademark ‘NANDHINI’ and it had applied the trademark in respect of goods like coffee, tea, cocoa, sugar, rice, rapioca, sago, artificial coffee, flour and preparations made from cereals, bread, pastry, spices, bill books, visiting cards, meat, fish, poultry and game; meat extracts; preserved, dried and cooked fruits and vegetables; jellies, jams, fruit sauces, etc. which are used in the products/services of restaurant business. The aforesaid items do not belong to Class 29 or 30. Likewise, stationery items used by the appellant in the aid of its restaurant services are relatable to Class 16. In these circumstances, there was hardly any question of confusion or deception.”

Thus, the goods that are dealt with under the name ‘NANDHINI’ aren’t strictly under class 29 & 30. The milk and milk products, which are sold by the respondent under the trade mark of ‘NANDINI’, fall under Class 29 and Class 30 as per classification under Schedule IV to the Trade Marks Rules, 2002.

  • "Nandini/Nandhini” is a generic name, representing a goddess and a cow in Hindu mythology, and it is not an invented or coined word attributed to one party.
  • Referring to the judgement in Vishnudas Trading As Vishnudas vs The Vazir Sultan Tobaccoco. Ltd. JT 1996 (6), 366 1996 SCALE (5)267, it is stated that the proprietor of a trade mark cannot enjoy monopoly over the entire class of goods especially if he is not using the said trade mark in respect of certain goods falling under the same class. Refusal under Section 11(2)(b) cannot be made because both the parties started using the marks within a span of 4 years of each other and both have built a considerable reputation with the state boundaries for themselves over the years.

 

Thus, on all these grounds, the Supreme Court laid down that the two marks are not deceptively similar.

Conclusion:

The Supreme Court thus allowed the mark ‘NANDHINI’ to be registered and used by the restaurant based on the ground that it (device/logo) is not deceptively similar to the mark ‘NANDINI’ (device/logo) used by the respondents.

On the face of it, this decision may seem logically sound because denying registration on grounds of mere phonetic similarity, when the marks are visually poles apart and the products under them are also different, would be a hindrance to a healthy competition.

However, it would also be pertinent to note that the court seems to have overlooked the fact that in this case, ordinary person would mean any person hailing from Karnataka or one who has lived here for a considerable amount of time. To anyone, from any other part of the country, these marks would most probably be similar and confusing.

The restaurant chain operated within Bangalore and no one outside Bangalore would have plausible reason to be aware of this chain. The Milk Federation sells its products within the region of Karnataka. Hence, any one residing here for a long time would not confuse them. But, to any ordinary person from outside the city or state limits, these marks would seem to be confusing or having the same origin.

To understand this conundrum better, we can look back at the case of London Dairy v Londonderry wherein the Bombay High Court ruled that mere phonetic similarity would not amount to infringement of any sort. One mark was famous for its ice cream products. The other for its boiled confectionary. Both were sweets, but one was not confused for the other because the former had built a reputation for itself nationally while the new one was distinctly viewed by the consumers as something different. The consumers were not confused because they could differentiate between the origin of the two marks and their underlying products.

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TRADE MARK DILUTION vis-à-vis THE JEEP-ROXOR DISPUTE

Roxor vs Jeep

Jeep-Roxor Trade Dress Issue

Fiat Chrysler Automobiles (FCA) has moved the US International Trade Commission (USITC) against Mahindra & Mahindra to stop the sale of Mahindra’s Roxor ATV, alleging that Mahindra is violating the Trade Dress of the Jeep Brand. FCA has complained that the off-road Roxor’s design is similar to that of Jeep's traditional design. FCA has stated that due to the manufacture of Roxor in India and its assembly in the US, the cost of Roxor is low and thus resulting in the underselling of Jeep. The FCA also claims that the Roxor infringes some of the design elements from the Jeep brand, such as the “boxy body shape with flat-appearing vertical sides and rear body ending at about the same height as the hood,” and has produced the photographic evidence to suggest similarities between the Jeep and the Roxor.

FCA’s Allegations

The allegations made by FCA against Mahindra and Mahindra could be summed up as two major issues:

  1. Mahindra has infringed Jeep’s trade Dress
  2. Mahindra has diluted Jeep’s trade mark

To establish whether there’s any such infringement or dilution, it becomes imperative that we first understand the concept of Trade Dress and the concept of dilution.

  1. What Is Trade Dress Infringement?

    1. What is a Trade Dress?

A Trade Dress is different from a Trade Mark[1]. Trade dress refers to the overall appearance of a product. It is an umbrella term and includes shape (Coca-Cola Bottles[2]), colour (Red Soles of Louis Vuitton Shoes[3]), design (Herme’s bag designs[4]), texture (use of braille markings on products), the packaging (Colgate’s Toothpaste Pack), labels (Levi’s Red Tabs on Jeans), presentation. It also encompasses the manner of promotion or advertisement including the use of distinctive graphics, configurations, and marketing strategies.

Courts have found a variety of trade dress to be distinctive – the bean shaped window used by Jelly Belly Candy Company, GOLDFISH’s fish-shaped crackers, Hershey's KISS chocolates, Taco Cabana’s restaurant décor, the number 007 as a reference to James Bond, etc. have all been held to be trade dresses, the infringement of which would result in legal action.

In the US, protection against trade dress infringement is provided for in the Lanham Trademark Act. Similar statutes and various common-law doctrines also provide protection to trade dress to ensure fair competition.

The law of trade dress generally serves four purposes[5]:

  • to protect the economic, intellectual, and creative investments made by businesses in distinguishing their products.
  • to preserve the good will and reputation that are often associated with the trade dress of a business and its merchandise.
  • to promote clarity and stability in the marketplace by encouraging consumers to rely on a business's trade dress when evaluating the quality of a product.
  •  to increase competition by requiring businesses to associate their own trade dress with the value and quality of the goods they sell.

While it is advantageous for businesses to register their trademarks, service marks, and trade names with the government, trade dress has no formal registration requirements and receives legal protection simply by being distinct and non-functional.

  1. How to Prove Infringement of Trade Dress?

To establish a claim for trade dress infringement, a company must demonstrate the distinctiveness of its product's appearance. However, such a protection cannot be granted for any feature that is functional in nature. Goods that are packaged or promoted in an ordinary, unremarkable, or generic fashion normally receive no legal protection under the law of trade dress. Simultaneously, something as simple as a grille on the front end of the Jeep automobile may be considered sufficiently original if the manufacturer takes deliberate and tangible steps to promote that aspect of the vehicle over a long period of time or if the public associates that grille with FCA.

  1. Distinctiveness

While the Lanham Act does not mention the requirement of a showing of distinctiveness, courts have universally imposed that requirement. Thus, the plaintiff must show that consumers perceive the particular trade dress as identifying the source of a product. Even if a mark is found to be not inherently distinctive, it still can be said to be distinctive if it has acquired a secondary meaning. Thus, the mark should be such that the consumer has created an association between the trade dress and the source of the trade dress (the company).

In the present case, Jeep has acquired recognition for its overall appearance and the general reaction to Mahindra’s Roxor was to associate it with FCA’s Jeep[6]. The FCA owns all rights for Jeep Trade Dress and has standing to bring an action for trade dress infringement under the United States Lanham Act and additionally, has strong rights in its Jeep Design Marks based on use and recognition of them, under Section 43(a) of the United States Lanham Act. These factors will make it difficult for Mahindra to prove that they are not infringing upon Jeep’s trade dress.

  1. Functionality

The Lanham Act doesn’t provide for protection of a trade dress of a functional nature. If trademarks were allowed for the functional features of a product, then the owner of such a trademark would end up achieving a monopoly over these features regardless of whether they qualify as patents, thereby affecting competition.

In the case of Qualitex[7], the court says that a manufacturer could not use the shape (special illumination-enhancing shape) as a trademark because, after the patent expired, this would be a hindrance to competition.

A quick review of the jeep’s history[8] would highlight that the jeep was built in the manner in which it was to serve a functional purpose[9] – to serve the US Army. Mahindra might hold on to this straw to prove that the features are functional and hence not protectable as trade dress. The Roxor is an off-road vehicle and is therefore suitable rugged terrains which other vehicles might not be able to tread. But other features, such as the use of the grille and the boxy shape would be difficult to justify and thus this argument would be weak at best.

FCA has stated that Roxor dilutes its brand and has thereby sought an injunction against Mahindra. To determine whether there is a dilution of brand, we need to understand the concept of dilution.

  1. What Is Trade Mark Dilution[10]?

    1. Dilution as a Concept

The Federal Trademark Dilution Act 1995 prohibits marks that dilute the distinctiveness of famous marks in the United States. Under this statute, the owner of a famous mark can stop others from commencing use of a mark in commerce which is likely to dilute his own famous mark, even in the absence of actual or likely confusion, competition or actual economic injury. The goods and services for which the mark will be used are irrelevant in determining likelihood of dilution.

To qualify as famous, a mark must be “widely recognized by the general consuming public of the United States, and must satisfy, inter alia, the duration, extent and geographic reach of advertising and publicity for the mark; the amount, volume and geographic extent of sales of goods or services offered under the mark; the extent of actual recognition of the mark; whether the mark is registered in the United States

There are 2 limitations to a mark being declared famous in the United States – Firstly, it must be distinctive (whether acquired or inherent). Secondly, fame in a limited geographic market in the United States or in a specialised market is insufficient.

There are two ways by which a famous mark can be said to be diluted: blurring and tarnishing.

  1. Blurring applies when a person uses a trademark in a manner which diminishes the uniqueness of a famous trademark. It is an association arising from the similarity between a mark or trade name and a famous mark that impairs the distinctiveness of the famous mark. To illustrate, if someone adopts the famous mark Sony to provide goods and services unrelated to electronics, such as shoes, then such a use may dilute or blur the distinctiveness of the Sony mark such that it becomes associated with additional sources instead of a single source.
  2. Tarnishing happens when the use of the mark is such that it would negatively impact the reputation of the famous mark. It is an association arising from the similarity between a mark or trade name and a famous mark that ends up harming the reputation of the famous mark. Thus, if someone adopts the tradename Patanjali to produce and sell liquor, the use may dilute the Patanjali mark by tarnishing the goodwill and reputation associated with the Patanjali mark. If the mark becomes associated in the eyes of consumers with liquor, the goodwill attached to the family-friendly, environmentally-positive brand will presumably be damaged.

In the present factual matrix, Mahindra has not made any use of Jeep’s brand name or trademark in any form whatsoever. So, the claim that Mahindra’s sale of Roxor dilutes the Jeep brand name is baseless and holds no ground. While the impression is that Roxor looks similar to Jeep, there seems to be no evidence to show that Roxor rides on the Jeep brand name or attempts to tarnish it negatively.

  1. Proving Dilution[11]

In March 2003, in a case[12] the US Supreme Court laid down that the federal dilution law, unlike traditional trademark law, was intended to protect the famous marks and not the consumers. It stated that to claim dilution, the owner of a famous mark must demonstrate that actual dilution, and not the likelihood of dilution, has occurred. Thus, dilution can only be proven by evidence of actual harm to the famous mark.

FCA claims that consumers will attribute any defects or negative impressions of the Roxor to FCA thereby harming FCA’s reputation and the intangible goodwill associated with its brand. It also claims that there is a substantial threat that consumers will perceive the Roxor as having quality issues, as not being as durable and off-road capable as expected for Jeep brand vehicles, or as simply not worth the price being charged for them. It must be noted that FCA does not provide any substantial evidence to show any such negative impact. Instead, they have stated what could bee termed as mere speculations as to dilution thus, not providing enough grounds for remedy.

  1. Remedies Against Dilution[13]

Generally, the only remedy available is an injunction against further dilution. However, if the plaintiff can prove that the defendant wilfully intended to ride on the reputation of the famous mark or to cause dilution of the famous mark, then other remedies such as attorney’s fees, damages, defendant’s profits would also be available.

Should the FCA, despite the odds, be able to prove that there’s any trademark dilution, the only remedy they could get is an order of injunction asking Mahindra to stop the sale of Roxor in the US. FCA’s sale of Jeep products has been on the decline before Roxor was even introduced to the market. Thus, any claim for damages should not be entertained.

  1. Exceptions to Dilution

The Act makes clear that certain actions will not deemed as dilution. Fair use (whether in advertisement or parody), non-commercial use, and all forms of news reporting and news commentary would not constitute dilution under the Act.

Mahindra need not claim any defence because prima facie, FCA does not have enough evidence to back their claim for Trademark dilution.

Conclusion

A careful perusal of the complaint made by FCA and a quick glance over Mahindra’s Roxor would show that, there is no trademark violation per se because the logos and the names of the vehicles are not similar at all. The word “Mahindra” is clearly and boldly visible on Roxor’s body. Thus, FCA’s claim of Trademark Infringement does not seem to hold good. And essentially, the Roxor and the Jeep have different specifications that end up causing a difference in how these two operate off road[14].

In the end, it boils down to infringement of Trade Dress. To determine whether the Roxor is an infringement of Jeep’s Trade Dress, the question that needs to be addressed is whether the Roxor looks so much like a Jeep that the public, instead of finding it similar, confuses it entirely with a Jeep model. And it would seem like Mahindra would have a tough time proving their case[15]. Thus, the test for likelihood of confusion[16] becomes important.

Section 43(a) does not state in expressive terms as to in whom the likelihood of confusion must exist. As a rule, an appreciable number of ordinarily prudent purchasers of the products in question should have been misled or confused. However, section 43(a) does not always require that the likelihood of confusion be among the actual consumers or the potential consumers of a manufacturer or business. The Fourth Circuit Court has laid down that a trade dress infringement could be based on a likelihood of confusion among the general public if such public confusion will adversely affect the plaintiff’s reputation with all the parties it interacts with.[17]

The likelihood of confusion is determined on the basis of the overall visual impression of the parties’ products or services in terms of a number of factors[18] (such as strength of dress; proximity of goods; similarity of dresses; evidence of actual confusion; marketing channels used; type of goods and degree of care likely to be exercised by purchaser; defendant’s intent in selecting dress; and likelihood of expansion of product line). Confusion, however, must be likely among a substantial number of consumers. Only a few misled consumers are insufficient to maintain a cause of action.

The Second Circuit Court has also extended the likelihood of confusion to the general public based on an adverse impact on the trademark user’s reputation[19]. Actual confusion is not the standard for trade dress infringement; rather, it is enough to show that confusion is likely among consumers. This is different from trademark dilution where the plaintiff would require actual evidence to show harm caused by dilution. Thus, FCA could claim that Mahindra’s Roxor is likely to cause confusion amongst the general public with respect to its apparent counterpart Jeep. However, this could be a tall claim because while most magazine and journal reports point out to the similarity between the Roxor and the Jeep, none of them mention that the Roxor is being mistakenly confused for Jeep or vice versa. Additionally, FCA would have to prove that its goodwill/reputation suffers an adverse impact because of Roxor.

We hope this article was a useful read. 

Please feel free check our services page to find out if we can cater to your requirements. You can also contact us to explore the option of working together. 

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[12] Moseley v. V Secret Catalogue, Inc., 537 U.S. 418 (2003).

[17] Communications Satellite Corp. v. Comcet, Inc., 429 F.2d 1245, 1251 (4th Cir. 1970).

[18] Adidas-Salomon AG v. Target Corp., 228 F. Supp. 2d 1192 (D. Or. 2002).

[19] Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200, 205 (2d Cir.1979).

Toyota Vs. Prius Auto – Analysis On Permeation Of Goodwill And Reputation Of Foreign Marks Into India And Passing Off Such Marks

Trademark infrignement

The judgment of The Supreme Court of India in the matter of Toyota Jidosha Kabushiki Kaisha Vs. Prius Auto Industries Ltd. & Ors is worth bookmarking for IP practitioners in India. The tussle between Toyota and Prius Auto has been going on since the year 2009. The initial matter concerned several trademarks, viz., TOYOTA, TOYOTA INNOVA and TOYOTA (device mark) and PRIUS. While the judgement (largely in favour of Toyota) of the lower court concerning the first three listed marks are not appealed in The Supreme Court, the judgment, which was in favour of Prius Auto and others (“Defendants”), concerning PRIUS, was appealed. The Supreme Court held in favour of Defendants, Prius Auto and others.

By way of background, the Defendants had obtained registration of the mark, PRIUS, in the year 2002, and has been using the mark since 2001. Toyota (“Plaintiff”) on the other hand launched the world’s first commercial hybrid car called Prius in Japan in the year 1997. In India however, the car was released in the year 2009, and the Plaintiff applied (as “proposed to be used”) for registration of the PRIUS mark on December 03, 2009, and followed it up with institution of suit against the defendants on December 21, 2009.

In the appeal, the Supreme Court set out to determine whether the defendants, by using the mark, PRIUS, to market the automobile spare parts manufactured by them, are guilty of passing off their products as those of the plaintiff, thereby injuring the reputation of the plaintiff in the market.

In order to address the issue at hand, Division Bench of the High Court considered two largely differing doctrines that have an impact on scope of trademark protection, viz., Universality Doctrine and Territoriality Doctrine. Universality Doctrine posits that a mark signifies the same source all over the world. In contrast, Territoriality Doctrine posits that a mark has separate existence in each sovereign country. In other words, under the Territoriality Doctrine, prior use of the trade mark in one jurisdiction would not, by that very fact, entitle its owner or user to claim exclusive rights to said mark in another dominion. The Division Bench held that Territoriality Doctrine holds, and the Supreme Court concurred.

In view of territoriality principle, the court had to determine whether there has been a spill over (by the time the Defendants started using the mark) of the reputation and goodwill of the mark used by the claimant who has brought the passing off action. The court considered the evidence, dated prior to first use of the mark by Defendants, supplied by the Plaintiff to assert spilling over of the reputation and goodwill of the mark to India.

The court noted that the car itself was introduced in the Indian market in the year 2009-2010. Further, the advertisements in automobile magazines, international business magazines; availability of data in information-disseminating portals like Wikipedia and online Britannica dictionary and the information on the internet, even if accepted, would not be a safe basis to hold the existence of the necessary goodwill and reputation of the product in the Indian market at the relevant point of time, particularly having regard to the limited online exposure at that point of time, i.e., in the year 2001. In view of these observations, among others, the Supreme Court agreed with the conclusion of the Division Bench that the brand name of the car Prius had not acquired the degree of goodwill, reputation and the market or popularity in the Indian market so as to vest in the Plaintiff the necessary attributes of the right of a prior user so as to successfully maintain an action of passing off even against the registered owner. The Supreme court further held that if goodwill or reputation in the particular jurisdiction (India) is not established by the Plaintiff, no other issue really would need any further examination to determine the extent of the Plaintiff’s right in the action of passing off that it had brought against the Defendants.

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“Barbie girl”: Mattel Trademark Infringement case

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The Delhi High Court was recently approached by toy-maker Mattel Inc. (the Plaintiff), the manufacturer of “Barbie” dolls. It had come to their notice that the makers of the Hindi movie “Tera Intezaar” had included a song called “Barbie girl” in their movie. Consequently, Mattel sued the producers of the movie for Trademark infringement of “Barbie” and requested the High Court for an ex-parte injunction to restrict the release of any version of the movie that includes the aforementioned song.

Mattel is the owner of the “Barbie” trademark in India for multiple classes of goods. The issue pointed out by Mattel in their allegation is two-fold. One issue is the alleged trademark infringement by the use of the word “Barbie” in the song. The second issue put forth by the Plaintiff is the alleged dilution of the Plaintiff’s “Barbie” trademark.

The Plaintiff alleged that their trademark was repeated multiple times in the song while the actress performed dance steps inspired by a Barbie doll. Further, the Plaintiff alleged that their trademark was included in the song merely to increase the commercial aspects of the movie. The Plaintiff also alleged that dilution of their trademark had occurred through the suggestive lyrics of the song, which feature an actress who is a prominent figure from the adult entertainment industry. The Plaintiff further contended that the contents of the song and its video are provocative, inappropriate and unsuitable for children, especially young girls, which has resulted in the tarnishing and degrading of the quality of the trademark “Barbie”.

The Plaintiff requested the Delhi High Court to grant an “in-camera” ex-parte hearing, wherein the case would be recorded instead of taking place openly. This request was refused by the Court on the grounds that ultimately, the dispute would become public and media reporting cannot be prevented.

The Delhi High Court also advised the parties to chill. This rather informal suggestion was replicated from a 2002 United States Court of Appeals judgement, regarding a similar infringement allegation of the “Barbie” trademark. This case involved the famous song “Barbie girl” from the Danish band “Aqua”. The Plaintiff, Mattel, had sued the Defendants, a music company, over allegations similar to the current case.

Initially, the United States District Court denied relief to the Plaintiff by reasoning that the use of the “Barbie” mark in the song was not an infringement of the toy manufacturer’s trademark associated with the doll. The District Court further stated that trademark rights do not entitle the owner to nullify an unauthorized use of the trademark by another entity who is communicating ideas or expressing points of view using the trademark. Further, the District Court stated that the trademark owner does not have the right to control public discourse merely because the public imbues the mark with a meaning beyond its source. Hence, the music company’s use of “Barbie” was not an infringement of the trademark. Upon appeal, the Court of Appeals requested the Plaintiff and Defendants to chill, or calm down in other words.

The Delhi High Court too stated the abovementioned matter. Further, it also quoted the Supreme Court’s decision in Nachiketa Walhekar Vs. Central Board of Film Certification as follows: “It is worthy to mention that freedom of speech and expression is sacrosanct and the said right should not be ordinarily interfered with. … An artist has his own freedom to express himself in a manner which is not prohibited in law and such prohibitions are not read by implication to crucify the rights of expressive mind. …. The Courts are to be extremely slow to pass any kind of restraint order in such a situation and should allow the respect that a creative man enjoys in writing a drama, a play, a playlet, a book on philosophy, or any kind of thought that is expressed on the celluloid or theater, etc.”.

Interestingly, the Delhi High Court also mentioned that granting an ex-parte order may send a wrong signal to the public at large. The Judge kept in mind on-going issues concerning another movies, which have been in the news recently over demands by one section of the society for banning it. Additionally, the Judge concluded the matter by stating that the plea may be considered at the notice stage. Thus, it remains to be seen what further steps are taken by the Plaintiff in this regard.

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Trademark protection of architectural design

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A discussion on trademark protection of architectural design will typically begin with the Empire state building. It is because the building owned by a private firm secured its trademark early in 1931 and has enjoyed various economic benefits through the trademark protection for almost 80 years. Followed by the building, few other famous constructions like Eiffel Tower (at night when the lights are aglow) in Paris and Opera house in Sydney have also secured the trademark protection for their architectural design. However, India with numerous architectural marvels that are owned by an individuals or companies have not gained any trademark protection for architectural design until recently.

On June 19th, the Indian Hotels Company Ltd (IHCL) that owns The Taj Mahal Palace was granted a trademark for the hotel’s unique architectural design such as the red-tiled Florentine Gothic dome and the grand exterior. The Taj Mahal Palace is the first building of its kind in India to secure a trademark for its architectural design. India’s iconic luxury hotel, The Taj Mahal Palace that was built in 1903, has hosted numerous famous personalities and dignitaries from different parts of the world and is highly recognizable throughout India. Acquiring trademark registration was not cumbersome as the hotel already met the various prerequisites. In the backdrop of this registration, we discuss various aspects of Trademark protection of an architectural design. 

How can a building secure Trademark protection?

  • The first and foremost rule to apply for a trademark protection for an architectural design is that the building should be either owned by an individual or a company.  
  • The building should be distinctive which means that the building should be easily recognizable by many people.   
  • The building should represent a brand that associates a product or service to a source.

Once trademark protection is secured, the building or architecture can enjoy many economic benefits and prevent others from exploiting the architectural design and take advantage of it.

What can be called a trademark violation of an architectural design?

There are few aspects to judge a trademark violation:

  • The use of the trademarked building should be non-editorial. A building’s image published on a newspaper wouldn’t violate trademark. Whereas, an image of a building used to advertise another product could violate the trademark.
  • The use of the trademarked building to endorse identical or deceptively similar goods or services by third party may be considered infringement. Mc Donald’s in its advertisement for promoting burgers, cannot use an image of a KFC restaurant in the advertisement as it may lead to confusion among consumers.

Economic benefits of trademark protection: Empire state building vs NYC beer –  A case study

A building with a unique and a widely recognizable architectural design can apply for a trademark to prevent others from exploiting the economic benefit of the architectural design. For example, in the year 2016, ESRT Empire State Building LLC who owns the trademark of Empire state building since 1931, filed an opposition for the grant of trademark that was filed by NYC Beer for its alcoholic beverages.

 

NYC beer

The opposition application filed by ESRT Empire State Building LLC was based on the grounds of trademark dilution, likelihood of confusion and false suggestion of a connection with Empire state building. According to US law, the trademark dilution is proved and accepted if the trademark is recognized and famous. As a result, ESRT Empire State Building LLC was successful in winning the opposition as the building attracts millions of tourists and visitors every year and is easily recognizable by public. Also, the building management stated that, a gift shop in the building also sells few alcoholic and non-alcoholic beverages as a souvenir for the visitors. So, the NYC beer may be confused by people with the ones that is sold by the gift shop. The trademark protection, helped the Empire state building to hold its recognition and prevent any misuse of it by any other companies.

Scope of trademark protection of architectural design of a building

Sydney’s Opera House, the Empire State Building and The Taj Mahal Palace hotel could easily secure a trademark protection, as they fulfil all the prerequisites and are owned by private entities.

For some, it might be surprising that how Eiffel tower being a public property, managed to secure a trademark. Surprisingly, the Eiffel tower does not hold a trademark for its architectural design but for the lighting design. The Société d’Exploitation de la Tour Eiffel, the organization managing the structure defends the trademark protection saying that the lighting is an artistic work which is separate from the structure itself. Thus, an architectural design need not necessarily be a structural, instead it can be any other possible architectural design.

For example, Apple, the world’s famous and recognized electronic gadget manufacturer secured a trademark for its “architectural design of Apple stores” from USPTO on January 24, 2013. It is to be noted that every Apple store cannot be structurally same as they are in various places under various space constraints. However, the trademark protection is not for the structure but for the store’s layouts, with their open spaces and symmetrically arranged displays. The trademark protection of “architectural design of Apple stores” helps Apple to legally act against duplication of the “look and feel” of its stores by any of its competitors.

The Trademark protection of an architectural design helps many private firms protect the various aspects of their buildings and structures. It is good to see that Indian firms are also understanding the benefits of trademark protection and trying to get benefit out of their architectural designs.

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Trademark controversy which “The Nation wants to know”

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An interesting debate has risen over the phrase nation wants to know. The phrase was used frequently by one of India’s most popular news anchors Arnab Goswami, while questioning his guests on a daily primetime live debate called Newshour, aired on Times Now channel owned by Bennett, Coleman & Company Limited (“BCCL”). Arnab later resigned to start a news channel called Republic TV, which is slated to launch in the coming days. According to news reports, Arnab has received a notice from his former employer asking him not to use the phrase on his news channel Republic TV alleging that the phrase is their trademark.

Interestingly, Arnab’s new company ARG Outlier Media Private Limited (“ARG”) has applied for trademark registration of the phrase the nation wants to know (application number – 3467425) and nation wants to know (application number – 3467428). On the other hand, BCCL has applied for trademark registration of the phrase nation wants to know and corresponding logo (application numbers – 3434199 and 3434201).   

Any IP practitioner would agree that getting trademark registration over the phrase nation wants to know for news services is an uphill battel. The phrase would likely be rejected on absolute grounds under Section 9(1)(c). As per said section, trademark registration should be refused if the trademark consists exclusively of marks which have become customary in the current language or in the bona fide and established practices of the trade. There is absolutely no doubt that the phrase under consideration is customary in the current language or in the bona fide and established practices of the news industry.

Section 9(1)(c), however, provides an exception, which allows for registration of such phrases. For such phrases/marks to be registered, the phrase should have acquired a distinctive character as a result of its usage before the date of application for registration or the phrase should be a well-known trade mark. Therefore, one would hope that considering the might of BCCL and Arg, both would have framed a sound legal strategy at least to prove that the phrase has acquired a distinctive character as a result of its usage before the date of application for registration. However, the actions taken by both parties thus far only appear to indicate lack for strategy to further their cause.

BCCL had an excellent opportunity to prove that the phrase has acquired distinctive character as a result of its usage, since the phrase was constantly being used by Arnab, as its employee. However, BCCL, in their trademark applications has submitted that they “propose to use” the mark/phrase. In other words, BCCL is not asserting that they have already been using the phrase, but only propose to use the phrase. In view of this submission, it is unlikely that BCCL will be able to benefit from the exception of Section 9(1)(c), and will most likely be rejected trademark registration at least for news related services.

Arg’s strategy appears to be equally lackluster. ARG being a new entity, with its news channel yet to be launched, would in any case find it difficult to benefit from the exception of Section 9(1)(c), since they have not used the phrase to the extent required by Section 9(1)(c). Therefore, attempting trademark registration would be an effort without any favorable outcome. Nevertheless, there is no harm in filing for trademark registration. A more concrete and supplementary strategy would be for Arnab to assert that he has personality rights over the phrase, since “nation wants to know” is widely considered as Arnab’s style of questioning his guests on TV debates. However, Arnab in his open audio response on YouTube purportedly to BCCL says “Every Indian has a right to use that phrase. And this phrase comes from the heart. Every Indian, through his or her questioning spirit, can use the phrase Nation Wants to Know”.

With this response, Arnab, one of the directors of ARG is in effect appears to be submitting that the phrase has no distinctive character, and hence cannot be a trademark, and more importantly, he submits that he does not have any personality rights over the phrase, which is a way may have a more devastating effect in establishing rights over the phrase.

In conclusion, while the tussle over the phrase “nation wants to know” is interesting, this article tries to draw a broader picture of trademark strategy, and the finer details that can change the course of outcome.

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Bombay High Court: no infringement in Cipla v. Cipla

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A Full Bench of the Bombay High Court announced their decision in the matter of Cipla Limited v. Cipla Industries Pvt. Ltd. on March 1, 2017. This case explores an important issue in trademark infringement regarding the use of a registered mark in a corporate or trade name, with respect to entities dealing with dissimilar goods/ services.

The Plaintiff, Cipla Limited, is a manufacturer of pharmaceutical products and has registered the trademark “CIPLA” under Class 5, which relates to pharmaceutical products. The Defendant, Cipla Industries, manufactures household items such as ladders and photo-frames, and has registered the trademark “CIPLA PLAST” under Class 21, which relates to household items such as utensils, containers, and combs, among others.

The Plaintiffs filed a suit against the Defendants for trademark infringement and passing off in 2012, claiming that the Defendants are violating the trademark rights of the Plaintiff by using “CIPLA” in their corporate or trade name. Two important things to note about this case are that the Defendant manufactured dissimilar goods when compared to the Plaintiff and the Defendants used the Plaintiff’s registered mark as part of their corporate or trade name.

This case takes precedence from the Raymond Limited v. Raymond Pharmaceuticals case, wherein the textile and clothes manufacturer, Raymond Limited (Plaintiff), alleged that Raymond Pharmaceuticals (Defendant) infringed on the Plaintiff’s trademark “Raymond” by using it in their corporate name.

Trademark infringement of well-known marks is dealt with under § 29(4) and infringement by use in trade or business name is dealt with under § 29(5) of The Trade Marks Act, 1999 as reproduced below:

§ 29(4) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which—

(a) is identical with or similar to the registered trade mark; and

(b) is used in relation to goods or services which are not similar to those for which the trade mark is registered; and

(c) the registered trade mark has a reputation in India and the use of the mark without due cause takes unfair advantage of or is detrimental to, the distinctive character or repute of the registered trade mark.

§ 29(5) A registered trade mark is infringed by a person if he uses such registered trade mark, as his trade name or part of his trade name, or name of his business concern or part of the name, of his business concern dealing in goods or services in respect of which the trade mark is registered.

Here, the Court reasoned that in order to establish infringement according to § 29(4), the Plaintiff has to show that the Defendant’s mark is identical or similar to the Plaintiff’s registered mark and that the Defendant is using the mark in relation to goods which are dissimilar to the goods corresponding to the Plaintiff’s registered mark, among other grounds mentioned in § 29(4). Consequently, since the case concerned the use of the registered mark as a corporate/trade name, §29(4) was overlooked in favour of §29(5). However, according to §29(5), infringement is only considered valid in case of “dealing in goods or services in respect of which the trade mark is registered.” Since the two entities in this case dealt with dissimilar goods, namely, textiles and medicines, the Court decided that the Defendants did not infringe on the Plaintiff’s trade mark rights.

The Court did not grant an injunction against Raymond Pharmaceuticals in Raymond Ltd. v. Raymond Pharma., and was of the view that this matter needed reconsideration. Hence, in Cipla Ltd. v. Cipla Industries, the Court sought to clear the matter by outlining four questions that needed to be answered for added clarity on this matter. The questions and their conclusions are as given below.

  1. Where a party is found to be using a registered trade mark as a 'name', viz., as a corporate or trading name or style, though in respect of goods dissimilar to the ones for which the trade mark is registered, is the proprietor of the registered trade mark entitled to an injunction on a cause of action in infringement under Section 29(5) of the Trade Marks Act, 1999?

Conclusion: No.

 

  1. Whether the use of a registered trade mark as corporate name or trading name or style is excluded from the purview of Sections 29(1)29(2) and 29(4) of the Trade Marks Act, 1999, and whether those Sections are restricted to the use of a trade mark 'as a trade mark', i.e., in the 'trade marky' sense?

Conclusion: Yes. The sub-sections will apply in "trademark versus mark" situations.

 

  1. Whether Sections 29(4)and 29(5) operate in separate and mutually exclusive spheres, i.e., whether, if the defendant uses the registered trade mark only as a corporate name or trading name or style in respect of dissimilar goods, a Plaintiff can have no remedy and is not entitled to an injunction?

Conclusion: Yes.

  1. Whether the view taken by the Division Bench in Raymond Ltd V Raymond Pharmaceuticals Pvt Ltd (2010(44) PTC 25 (Bom) (DB)) is a correct view?

Conclusion: Yes.

The Judges noted that § 29(4) uses the terms “in the course of trade” and “in relation to good and services”, which are not present in § 29(5). Further, the Court noted that “as his trade name or part of his trade name, or name of his business concern or part of the name, of his business concern” was not present in § 29(4). The Court made use of this difference to determine that § 29(4) would apply in a “trademark v. mark” situation while § 29(5) would apply in a “trademark v. trade/corporate/business name” situation.

In other words, § 29(5) states that an infringement has occurred with respect to a registered mark only when the goods in question are similar. Since the Plaintiff and the Defendant in this case dealt with dissimilar goods, namely household goods and medicines, the Judges decided that no trademark infringement was committed by the Defendants.

In our opinion, this decision would significantly limit the ability of entities with even well-known registered marks to act against infringement in certain situations. Further, the law regarding this matter seems to leave a loop-hole for potential infringers with dissimilar goods who may use a registered mark in their corporate or trade name.

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