Current scenario of trademark laws in India

INTRODUCTION With the continuously changing trends in society and cut-throat competition, businesses and persons are striving hard to gain and maintain a competitive edge over other firms in the same business sector. For this purpose, they are producing new products pertaining to the changing customer needs frequently and investing huge resources in the Research and Development programs and technology. Frauds and thefts of ideas and products are very common in the corporate sector. Intellectual property rights come into the picture when people want to maintain sole ownership over their innovation or creation and therefore, protect it. Intellectual Property Rights are the specific rights that are available to persons or entities for the protection of their innovations and strenuous creations over time. Trademarks, patents, design rights, copyrights, etc. are some commonly recognized IPRs. Certain types of trademarks that are registered under the Trademarks Act, 1999 are- Ø Product mark, Ø Service mark, Ø Collective mark and, Ø Certification mark. Trademarks can be in the form of symbols, signs, words, names, etc. that are used by a person or entity to differentiate their products from other enterprises producing similar goods or commodities. The initial use of trademarks in India can be traced back to the 10th Century in the form of ‘merchant’s marks’ that were imprinted on pottery, cattle, currencies, etc. But, the first statute relating to trademarks was adopted by India in 1940, called the Trademarks Act, 1940, before which the matters relating to infringements, passing offs, and other relating stuff were dealt under the 1877 Act.[1] The Act of 1940 was replaced by the Trademarks and Merchandise Act, 1958 which was further replaced by the Trademarks Act, 1999 and this is the current legislation that deals with the registration, protection, and prevention of dishonest use of trademarks in India, conforming to the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement. Some important features of this Act are:  It necessitates the protection of service marks as well as provides for the registration of collective marks.  It bestows special treatment and rights upon popular trademarks.  It bestows upon the police the right to arrest in cases of infringement of rights.  It provides extensive definitions for the terms that are frequently used.  It has increased the period of registration of trademarks and has also included the registration of non-traditional trademarks in its ambit. RECENT DEVELOPMENTS  With the initiation of the ‘Make in India’ and ‘Digital India’ movement by the Government of India, innovation, and ownership has been encouraged. The Government has itself decided to become an entrepreneur and for that purpose, many trademarks have been registered under the broad ‘Make in India’ campaign. The numerous tag lines and slogans used by various emerging products and brands in India have resulted in creating a comfortable environment for the acceptance and registration of trademarks.  Due to the vast approach of social media and other digital platforms, India has intensified its practice for the declaration of trademarks as ‘well-known.’ Example- TCS being a recognized ‘well-known trademark’.  With the fast-growing competitive market, business entities are striving hard to create personalized experiences for their customers. This practice is paving the way for the registration of non-traditional trademarks that point towards the senses of touch, smell, sounds, and sight.  SEBI has mandated the disclosure of the IP status by the companies and therefore, companies must have IP audits to gain investor trust.  Strict actions are being taken by the Advertising Standards Council of India against brands for false or exaggerated claims in advertisements.  Indian Courts are awarding damages in Intellectual Property claims frequently, which has in return improved the correlation between market capitalization and Intellectual Properties. DURING COVID-19 PANDEMIC With the emergence of the COVID-19 pandemic since February 2020, many new words and phrases have come into existence all over the world and are being filed for registration as trademarks. In India, more than 150 trademarks incorporating the words- ‘corona’ and ‘covid’ have been filed for registration under various classes last year. Most of them have been filed by several pharmaceuticals companies that are indulged in the procedure of creation and experimentation of medicines and vaccines under the class 5 category. Not only medicines but commodities such as sanitizers, face-masks, gloves, hand-wash, toilet cleaners, soaps, etc. have also been filed for registration under various other classes as well, to create an impression in the minds of consumers that these products and services prevent the outburst of coronavirus. As per Section 9 and 11 of the Trademarks Act, 1999, such registrations can be canceled on grounds that are absolute or relative, respectively. In short, if the words or phrases are not capable of differentiating among various goods and services, they can be refused registration under the grounds mentioned in Sections 9 and 11 of the 1999 Act. As the terms ‘corona’ and ‘covid’ are being used very frequently all over the globe at present, it is burdensome to register any such words as trademarks as in all probability it can create confusion in the minds of the consumers or can deceit the public at large. Moreover, the registration of such trademarks will give rise to fraudulent activities and scams as many wrongdoers will misuse this opportunity by creating false links in the guise of providing preventive services and scamming the public at large. RECENT CASES Myntra Issue: In January 2021, an issue arose regarding the logo of ‘Myntra’ to be offensive against women. A complaint was filed in December 2020 by the founder-director of Avesta Foundation, Ekta Naaz, who demanded that the ‘logo’ of the e-commerce store Myntra, which is an overlapping pink and orange colored ‘M’ be changed, as it was indecent, derogatory and denigrating towards women. The Cyber Police considered this matter after the complaint was filed and held a meeting with the officials of the website. Subsequent to the meeting, the officials agreed to change the logo at all platforms but after a span of 1 month in order to exhaust the existing inventory of the printed logo. According to the Advocates for Ekta Naaz, the logo was deliberately formed to picturize a woman with open legs and the color scheme depicting her vagina. This would corrupt the minds of viewers and will lead to the victimization of women in society. To come up with a symbol or logo for a brand, a lot of research and creativity, and huge funds are invested. Huge losses are suffered in changing a trademark for a big company like Myntra. Not only monetary losses, but the change in the trademark of a brand also affects the brand loyalty and engagement among the customers because the customers associate with the brand and refer to the brand by looking at the logo or symbol it depicts. To avoid a total boycott of the brand, Myntra chose to bring the logo down and correct its error. Whatman International Limited v. P. Mehta & Ors. [2] Herein, the defendants were engaged in the business of manufacturing and selling filter paper under the trademark named- ‘WHATMAN’, which has been registered in favor of the plaintiff since the year 1992. The defendants were sued by the plaintiffs for trademark infringement, trade-dress, passing off, etc. in the Delhi High Court. Various undertakings were given by the defendants in several criminal proceedings, but regardless the fact, the defendants continued to sell the goods under the said trademark. Contempt proceedings were initiated against the defendants after the violation of a court order by the defendants in the ongoing civil proceedings. The Delhi High Court found the defendants guilty of making false statements, passing off, trademark infringement and stated that the disobedience on part of the defendants amounts to contempt of court. Exemplary and punitive damages amounting to INR 3.6 million were awarded to the plaintiffs because the deliberate infringement has been committed by the defendants for 25 years. In addition to this, costs amounting to a sum of INR 1.4 million were also awarded to the plaintiffs. The judgment in this recent case proves that the courts are taking cognizance of trademark infringement cases seriously and are looking upon false statements and willful infringements carefully to ascertain the truth and render fair justice to all. Monsanto Technology LLC v. Nuziveedu Seeds Ltd. [3] In the present case, the Hon’ble Supreme Court set aside the judgment laid down by the division bench of the Delhi High Court in which the High Court had rendered Monsanto’s patent for an artificial gene construct as an ineligible subject matter under Section 3(j) of the Patents Act. Herein, the division bench made an erroneous interpretation of the patent claims relating to artificial gene construct by construing it as a ‘plant, seed or part of a plant and an essential biological process’, none of which qualifies as an eligible subject matter for a patent under the Act.[4] Therefore, the Supreme Court while setting aside the said order of the division bench, sent the matter back to the trial court for fresh adjudication based on evidence and restored the patent. Along with it, the Supreme Court restored the interim order of the trial court according to which the patent was prima facie valid, till the final determination of the suit. References:

[1] Special Relief Act, 1877, S.54, No. 1, Acts of Parliament, 1877 (India). [2] Whatman International Limited v. P. Mehta and others, (2019) 257 DLT 472 (India). [3] Monsanto Technology LLC v. Nuziveedu Seeds Ltd., (2019) 3 SCC 381 (India). [4] The Patents Act, 1970, S. 3(j), No. 39, Acts of Parliament, 1970 (India).

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