Coram: HMJ Vibhu Bakhru and HMJ Amit Mahajan

Why appeal was preferred?

Single Judge’s vide Judgement dt. 30.10. 2021 allowed Respondent’s Injunction application.

What exactly was directed vide the impugned Judgement?

Plaintiff (Ptf.) can seek protection u/s 28 of the TM Act, but cannot have right on surnames/generic words like Packers or Movers individually. Subject to this limitation, Injunction application was allowed in following manner:

1. Defendant (Def.) 1-3 to investigate any complaint made by plaintiff alleging use of TM and its variation as keywords resulting in diversion of traffic form Ptf’s website to that of advertisers.
2. Def. 1-3 to investigate and review overall effect of an Ad to ascertain that same is not infringing/passing off the Ptf’s TM.
3. If its passing off / infringement, then Def. 1-3 shall restrain advertiser from using same and block/remove such ad.

Ratio of impugned Judgment:

Use of TM as keywords in Google Ads Program amounts to ‘use’ under TM Act and thus may constitute infringement. Google will also be not entitled to defence of an intermediary under Section 79 of the IT Act 2000.

Facts:

Appellant: Google | Resp. – 1: DRS Logistics P. Ltd. | Resp. – 2: Agarwal Packers and Movers P. Ltd. [Resp. 1 and 2 collectively referred as DRS, which are leading packaging, moving and logistics service providers in India.]

DRS’s registered TM is ‘Aggarwal Packers and Movers’.

What was the allegation against Google?

That Google actively encourages use of respondent’s., registered TMs as keywords for 3^rd parties to display their sponsored links, which amounts to TM infringement.

The Ads Programme (Previously known as Google AdWords):

Advertisers can create and display online ad w.r.t their websites. Said adv. Appears on first page (SERP – Search Engine Result Page). One can reserve a keyword. Say Lexus India, may reserve ‘Audi’, wherein anyone searching Audi, the Google will shows result of ‘Lexus India’ on top of Search result.

Advertiser first create new campaign for advertisement. Advertiser then set an ‘avg daily budget’, then chooses targeting options like location/languages/etc. Then keyword is chosen. On typing those keywords by user, the ad will get triggered.

Google provides ‘keyword planner tool’ to assist user in selecting a keyword. The tool shows the advertiser, the volume of searches made for that particular keyword.

Then advertiser bid for that keyword. Advertisers don’t pay on impression i.e., how many times it appears on SERP. Rather it’s paid on basis of ‘how many times it was clicked – Pay per Click (PPC)’. Advertiser also pay bid qua the maximum price they are willing to pay if user clicks i.e., ‘Max CPC’.

The sequence on which Ad will be placed is also decided on basis of ‘Click through rate’ (CTR). Google estimates rate at which viewers will click an ad. More CTR – More relevant keyword. Google also check if landing page experience (website – user experience) and how closely ad is likely to match user’s search.

The above factors are used by Google to estimate Quality Score. High Quality Score and bid amount of advertiser creates the position at which ad will appear in SERP. Advertiser pay more and improve quality of website to improve Ad position. Ad’s position at top of SERP will yield more CTR.

Present case:

On googling the word ‘AGGARWAL PACKERS AND MOVERS’, 3^rd parties sites like ‘www.safepackersmovers.com’ and ‘www.dtccargopackers.com’ used to come on SERP. These sites have no connection with DRS.

Google’s contentions:

Use of keywords does not amount to ‘use’. Even if considered ‘use’ under TM Act – It will be a ‘use’ by advertiser and not Google per se. Google also sought ‘safe harbour’ protection under Section 79 of IT Act.

Use of trademark as keyword not per se infringement of a trademark. The said position have been accepted by courts across jurisdictions of UK, USA, EU, Australia, NZ, Russia, South Africa, Canada, Spain, Italy, Japan and China.

In India, test of confusion is based on perceptibility of mark by consumer in terms of visual, phonetic and structural similarity. Since keywords are invisible, to consumers, necessary element of confusion is absent. In absence of confusion – no infringement.

Rebutted Ld. SJ’s reasoning – Meta Tags and keywords are different. Meta tags are website descriptors and keyword is word provided by advertiser. Meta tag neither used by Google in organic search result or as part of sponsored link. Meta-tags are an outdated form of tech that is not used by Google for over a decade and not equivalent to keywords.

Diversion of internet traffic on account of use of TM as keywords is matter of trial. Requires evidence to be led on issue and can’t be decided at interim stage.

Google is entitled to safe harbor, since it has a content neutral role as advertisement as well as keywords comprises of 3^rd parties.

DRS’s contentions:

Google can’t claim ‘safe harbour’ protection under Section 79 of IT Act. It actively participates in promoting sponsored Ads. It itself determine ‘keywords’ which is relevant to goods and services of advertisers. Hence its not a passive intermediary as claimed.

Keyword and Meta tag perform similar functions.

Keyword planner tool clearly satisfies necessary element for infringement of trademark. Google through use of said tool informs advertiser about DRS’s TM. Google relied on various international decisions that held that invisible use of TM in keywords does not amount to ‘use’ and same is erroneous, since none of those cases discuss Keyword Planner Tool. Use of TM by said tool is not invisible but visible to advertisers.

Issues:

• whether use of the trademarks as keywords amounts to use of those marks for the purposes of Section 29 of the TM Act;
• if so, whether such use is that of the advertiser or by Google as well;
• whether the use of the trademark as keywords per se amounts to infringement of a trademark; and
• if so, whether Google is absolved of its liability in respect of use of trademarks as keywords by virtue of being an intermediary under Section 79 of IT Act

Whether use of the trademarks as keywords amounts to “use” under TMA?

The use of a trademark as keywords for display of advertisements in respect of goods or services clearly amounts to use of the trademark in advertising within the meaning of Section 29(6) of the TM Act.

The use of a trademark as a keyword by an advertiser for the purposes of displaying its advertisements on the Search Engine, is use of the mark in relation to the goods and services offered by an advertiser.

if so, whether such use is that of the advertiser or by Google as well;

Google actively promotes and encourages the use of trademarks identified with the leading goods and service providers-which apparently yield a higher incidence of search queries in respect of a particular category of goods and services-as keywords by suggesting the same and further monetizing their value. In our view Google’s PPC model, which actively uses keywords, derives a distinct advantage by use of trademarks as keywords.

whether the use of the trademark as keywords per se amounts to infringement of a trademark;

use of a registered trademark as a keyword, absent of any confusion, dilution, or compromise of the trademark, would not amount to infringement of the trademark.

Use of a trademark as keyword is, essentially, to seek the attention of the internet users who may find information relating to goods and services covered under the said trademark as relevant. We find nothing illegal in seeking out such internet users as targets for advertisements that they may find relevant.

Any person using an internet search engine such as that operated by Google for finding information relating to a search query is obviously aware that all search results may not be relevant.

Clearly, the facts of each case are required to be considered in determining whether in a given case use of a trademark as a keyword amounts to infringement under the TM Act

the use of the trademark as a keyword coupled with the display of a sponsored link must have real likelihood of confusion. Mere generation of interest in the sponsored link without any likelihood of confusion cannot be construed as infringement of a trademark. It is necessary to be careful to not conflate initial interest with the Doctrine of ‘Initial Interest Confusion’. Thus, sponsored links may be relevant to the search query and what the internet user is searching for. It may thus generate interest that would obviously not constitute infringement of a registered trademark under Section 29(2) of the TM Act, if there is no deception or confusion.

Contributory Infringement by Google?:

It is not necessary for us to consider this aspect in any detail at this interlocutory stage. The same would be a matter of trial provided DRS has laid a foundation for the action of contributory infringement in its pleadings and it produces evidence to establish the same.

Google – Liability under Section 79 IT Act?

the said benefit would be unavailable to Google if its alleged activities are found to be infringing DRS’s trademarks

Conclusion:

Google’s use of the trademarks as keywords does amount to use in advertising under the TM Act.

if it is found that Google has infringed DRS’s trademark or is contributorily liable for the same, the benefit of safe harbour under Section 79(1) of the IT Act would not be available to it

The post Google vs. DRS Logistics: Case analysis appeared first on LexForti .

In the captioned matter, the Ld. Trial Court restrained the Defendant form using the mark MEDILICE post long drawn trial and awarded punitive damages of sum of Rs. 10 Lakhs against the Defendant. Furthermore, the mark MEDICLICE was declared WELL-KNOWN by the Ld. Court.

Plaintiff:

Wings Pharmaceuticals Pvt. Ltd.

Defendant:

Kirit Bhadiadra

Competing Marks:

MEDILICE (Identical)

Nature of the Suit:

Suit for infringement, passing off, unfair competition, rendition of accounts, and delivery of impugned goods, etc.

Competing Product Description:

Anti-lice shampoo – Plaintiff

Hair Oil – Defendant

Registration Status of Plaintiff:

The Plaintiff adopted the trade mark MEDILICE in 1998 for the production of anti-lice shampoo. The Plaintiff became the registered proprietor of the trade mark MEDILICE on November 19, 2014, under class 3. This registration remains valid and in effect.

Defendant’s Registration Status:

The Defendant has also applied for registration of the mark MEDILICE in class 5, which is currently pending.

Issues raised:

1. Whether the plaintiff is entitled for permanent injunction restraining the defendant / its agents, etc. from infringing the plaintiff’s trade mark MEDILICE as alleged. ?

2. Whether the plaintiff is entitled for decree for permanent injunction restraining the defendant for passing off their goods as plaintiff’s goods by using trademark MEDILICE?

3. Whether the plaintiff is entitled for rendition of accounts?

Analysis:

Judgments:

Automatic Electrical Ltd Vs I L K Dhwan (1999) 19 PTC 81 (Dimmerdot)

• Defendant applied for registration cannot argue that the mark is descriptive.

Midas Hygiene v. Sudhir Bhatia (2004) 3 SCC 90

• In case of infringement injunction needs to follow

Sun Pharma Industries Ltd. v. Cipla Ltd., 2009 (108) DRJ 207 (Para 8, 11, 23)

• Third party cannot challenge an assignment between the plaintiffs.

Glaxosmithkline Pharmaceuticals Ltd. vs. Horizon Bioceuticals Pvt. Ltd. & Anr. 2023 SCC On-Line Del 2065

• Common to register does not prove that they are common to trade.

Allergan v. Chetana Pharma, 2007 (34) PTC 267 (Cal) (SJ), Para 11

• Mere manufacturing license does not prove usage.

Microsoft Corporation v. Rajendra Pawar & Anr., (36) PTC 697 (Del)

• Where the conduct of the erring party is found to be egregiously invidious and calculated to mint profits for his own self, awarding punitive damages prevents the erring party from taking advantage of its own wrong by escaping prosecution or detection

Reddy Laboratories Ltd. (Dr.) Vs. Reddy Pharmaceuticals Limited, 2004 SCC OnLine Del 668 (2004) 76 DRJ 6161

• to claim the defence of acquiescence, there should be a tacit or an express assent by the plaintiff to the defendant’s using the mark and in a way encouraging the defendants to continue with the business. It is as if the plaintiff wants the defendant to be under the belief that the plaintiff does not regard the action of the defendant as being violative of the plaintiff’s rights.

Hindustan Pencils (P) Ltd vs India Stationery, AIR 1990 Del 19

• the owners of trademarks or copyrights cannot be expected to run after every infringer and thereby remain involved in litigation at the cost of their business time, but can wait till the time the user of their name starts harming their business interests and starts misleading and confusing their customers.

Emcure Pharmaceuticals Ltd. V. Corona Remedies Pvt. Ltd. MANU/MH/1SS0/2014

• mere failure to sue without a positive act of encouragement is no defence and is no acquiescence

Relief:

A decree for a permanent injunction has been issued in favor of the Plaintiff. This injunction restrains the Defendant from dealing in cosmetic/medicinal preparations under the impugned mark MEDILICE, its variants, or any other trade mark that might be deceptively similar to the Plaintiff’s trade mark MEDILICE, thereby constituting infringement and passing off.

Compensation:

The Plaintiff is also entitled to punitive damages amounting to Rs. 10 Lakhs, in addition to the costs of the suit.

Decree

The post Rs 10 Lakh Imposed, Defendant Restrained from Using ‘MEDILICE’ appeared first on LexForti .

Introduction

Tata Sons, a prominent Indian corporation, recently initiated a legal action. The company aims to restrict foreign businesses in the cryptocurrency sector from utilizing the trademark “TATA”. This trademark forms part of their branding for the “TATA coin/$TATA” cryptocurrency. This case has presented intriguing legal considerations.

1. Jurisdiction: One consideration is the extent of the Indian court’s jurisdiction over foreign entities.
2. Injunction: Whether Tata Sons can seek an injunction against the Defendants’ mark is another concern.
3. Market Targeting: The case also examines the necessity of showing a clear intent to target the Indian market.

Parties to the case

The Plaintiff in this case is Tata Sons Private Limited. The company operates a cryptocurrency trading platform under the widely recognized “TATA” trademark.

The Defendants in this case include Hakunamatata Tata Founders and others. They have been trading cryptocurrency under the trademark “TATA coin/$TATA” in the U.K. and the U.S. They have no outlets or direct operational activities in India.

Arguments

Tata Sons put forward several arguments to establish the Delhi High Court’s jurisdiction over the Defendants.

1. Website Accessibility: The Defendants’ cryptocurrency could be bought from their website, which is accessible in India.
2. Financial Activities: The Defendants’ “White Paper” acknowledged their financial activities relating to India.
3. Twitter Interactions: The Defendants’ Twitter page displayed numerous queries from Indian users.
4. Web Traffic: The Defendant’s website named Hakunamatata finance received around 50 Indian visitors per day.
5. Social Media Presence: The Defendant had a substantial Indian following on Telegram.

Tata also provided legal arguments. They claimed that the Defendants willingly subjected themselves to the Court’s jurisdiction by making their cryptocurrency available in India. They argued that the Defendants’ activities harmed both Indian customers and Tata’s goodwill.

Issue

The Delhi High Court faced a significant question: Could it issue any injunctive orders to the Defendants, who were located outside India, with no physical Indian presence, or prevent them from using their “TATA coin/$TATA” mark?

Legal Analysis

India TV Case

The Hon’ble High Court discussed a similar case of (India TV) Independent News Services Pvt. Ltd. vs. India Broadcast Live LLC (2007). They identified some key differences between this case and the current one.

1. Website Services: In the India TV case, the Defendant’s website mentioned India as a serviceable country.
2. CEO Statement: The Defendant’s CEO publicly recognized their website’s potential to target Indian customers.
3. Written Statement: The Defendants acknowledged their presence in India.
4. IPTV: They claimed to be the first to deliver Indian content from India via IPTV.

The court noted that the website’s accessibility did not, in itself, empower it to exercise jurisdiction. Some clear evidence of directed activity towards India was needed. Unlike the India TV case, the Defendants here did not appear to overtly target India.

This initial judgment emphasizes the requirement of an “intent to target” in online trademark infringement cases. The case is not closed yet, and Tata Sons may still achieve a favorable outcome if they can prove the Defendants’ intent to target Indian customers.

Distinguishing India TV Case

The court examined the evidence put forth by Tata Sons in depth. The analysis revealed some crucial insights.

1. Website Accessibility: Access to the Defendants’ website within India did not necessarily extend the court’s jurisdiction over them.
2. Purposeful Activity: The court stressed that more substantial evidence of targeted activity towards the Indian market was necessary.
3. Interaction Level: Although there were queries on the Defendant’s Twitter page from India, it didn’t establish intent to target the Indian market.
4. Traffic Insights: 50 Indian visitors per day to the Defendant’s website. Telegram followers not seen as indicative of targeting the Indian market.

The court established that, unlike in the India TV case, there was no evidence of the Defendants in the current case overtly targeting India. The absence of specific reference to India on the Defendants’ website or a focused approach to the Indian market rendered the arguments of targeted activity insufficient.

Findings

The Delhi High Court set specific criteria for Indian courts to exercise jurisdiction over foreign Defendants in online trademark infringement cases.

1. Infringing Activities: The Defendant must be carrying out infringing activities within the Indian court’s jurisdiction.
2. Website Accessibility: The Defendant’s website must be accessible to people located within that jurisdiction.
3. Interactive Website: The Defendant’s website needs to be interactive.
4. Targeting Intent: The level of interactivity must be such that it reveals an unambiguous intent to target Indian customers.

Only then can Indian courts issue orders that impact nonresident Defendants. They can do so if the defendants’ activities have a strong connection with India, causing the Plaintiff’s cause of action, and if the jurisdiction’s exercise is deemed reasonable.

In the current scenario, the court ruled that Tata Sons failed to demonstrate the Defendants’ intent to target the Indian market. Consequently, the court refrained from issuing the directions sought against the Defendants, who were outside the court’s territorial reach.

This judgment showcases the importance of demonstrating a clear “intent to target” for Indian courts to exercise jurisdiction over foreign defendants in online trademark infringement cases. Tata Sons was unable to secure an injunction against the Defendants using the trademark “TATA coin/$TATA”.

Link to Judgement: [Access here]

The post Cross-Border Trademark Injunctions in India: Tata case study appeared first on LexForti .

INTRODUCTION

Let me start by saying that what do we understand by the term constitution; it is nothing but a blueprint of all the other laws. So, while we contour other laws it is always very necessary to get back to the basic law from where all the other Acts stems. This helps in understanding the principles on which our other Acts are to be made, and helps us in framing it. Now, the theme of the paper can simply be said a proximity between the constitution and the Intellectual Property Rights (IPR). It is very remarkable to understand this interface between the constitutional law and IPR and then how the recognition of court with respect to these rights by the judiciary, shows actually a very diverse perspective. The paper would look into the importance of freedom of speech and expression and an overview of the copyright act. Further a relationship which could be drawn between freedom of expression and IPR, and with that in mind that paper would take dip into some of the ancillary issue in relation to this.

There is no doubt that Freedom of speech and expression is one of the utmost important rights and that is something which underlines the basis of any democratic country. There is no polity which can work in Isolation with freedom of speech and expression. It serves many purpose firstly, it helps an individual to speak the truth about the polity and helps the public to make a reasonable choice.[1] Secondly, it brings the confidence in government, since you are not curbing the individual right to speak.[2] Thirdly, it bridges a gap between a social change needs to be brought in and the acceptance of the same from the society.[3]

Therefore, we always see that Freedom of speech and expression which finds its place in most of the International convention and our Constitution is an integral part of any democratic setup.[4] Indian constitution talks about the Liberty which has got a widen horizon to include this freedom of speech and expression. It could also be extended to give a person a protection of what he says and right that no one shall copy him against his will. Before, taking a dip into the interface between the IPR and constitution, now let’s turn our attention to look at an overview of copyright Act. 

Copyright is a property right given to an author for his original and novel work in any tangible form, which gives the proprietor right over that property so as to use it any form. They have authority to reproduce or not produce it or give somebody else the right to reproduce.[5] Thus this right includes a wide range of expression running from literary to artistic work.[6]  Thus a person who has a copyright over that property gives him the right to use that property in the way it warrants.[7] The only exception being that fair use of that material is allowed.  Therefore, we understand that copyright is an expression and it could be inferred that its protection stems from the Freedom of speech and expression. and this is something which the researcher will go through the course of this paper.  Recently, with the advent of media law which also stems from Article 19 of the Indian Constitution, there is seems to be a new artery over the protection of the IPR and constitution.

Interface between IPR and Freedom of Speech and Expression

As, we have already seen that there is definitely nexus between freedom of speech and copyright. Now before elaborating on it let us see that how the timeline of both the aspects has been quite close to each other. Then we will move to the understanding of both these laws and there nexus.

Development of Freedom of speech & expression Juxtaposes with IPR

The copyright law saw its development through with the different method of expression. At the time of the invention of printing machine we saw a lot of development in the concept of freedom of speech and expression.[8] It was thought that this freedom of expression is of no good use if they don’t have the right of publication.[9] But, with publication came piracy and that was the mischief which required an attention. SO, now the pirated copies of the book were being sold, so we needed a law which needs to curb that. The ultimate goal of every democratic setup is that no idea should be left un-heard.[10] However, that is not the only aim; the thing is that one should promote that individual to come up with an idea. The fascinating part is that with the increasing horizon of Article 19 we saw the gradual awareness of copyright Act. The patent law also saw its development during the same time. It is just a food for thought the more we understood the concept of liberty, we gain more clarity on the freedom of expression and from there we saw is that real growth in Intellectual property rights.

The aim of the IPR is to maintain the individual right with that of the public, with that in mind the copyright law came into existence. The point here was simple it was canvassing the importance of giving recognition to person over his work. The reason apart from getting an appreciation over the work is that you get an inspiration to right more be more creative and novel with your writings. As the author will be aware that there writing are now something which reflects them so they will try to come up with something better, and in addition to that there is always a monetary benefit.

Therefore, with the beginning of different medium of publication running from printing, film, music, cinema and other, the way of expression has been changed and what we see is that in the same line the copyright also extend to these mediums.[11] The Indian copyright at earlier used to be governed by the British legislation, however post independence things started to change with India being a signatory to international convention.[12] In addition to that UDHR and ICESR also talks about the protection of artistic right.[13] Further all of those international treaties canvassed for Freedom of expression and we have seen that both laws have their growth at the same time frame.[14]

 Nexus between IPR and Freedom of Expression

It need not be further focused that there is nexus between both the concepts, however what needs to be comprehend here to what length this relationship extends. The US constitution first amendment talks about the Freedom of speech and the court has said that the purpose is that all the idea should be preserved and there should not be any monopoly.[15] This give the citizen vigor to express their views, which is been protected by the Freedom of speech and the manner in which it is to be protected is been governed by the copyright. The US constitution expressly points out for the protection of artistic, literary and scientific work.[16]

There is no doubt that copyright law is nothing but an extension of the Right of freedom of speech and expression, if a person expresses something in the form of an artistic work, then that work become its property and then it warrants for protection under Article 300-A, which is been ensured by copyright Act.[17] The copyright gives the author right to take out an economic benefit over his piece of work. It has been argued by many that copyright is imposing a restriction on freedom of speech because it is not allowing the express something, just because it has already been expresses

The term expression cannot be restricted to mean only with respect to work covered under copy right Act. Expression in its horizon includes the technological invention, scientific innovation, and any design. All these innovations are the way in which the scientist expresses themselves and there is an evident need to protect it, which is been ensured by Patent Act. When we understand that all these law stems from a fundamental right, it gives us an impression that there is strict need for protection to the originator of the work. Otherwise the world has seen many instances where the original inventor is not been given the royalty of his work.

The copyright protection is given on the expression of ideas rather than on the ideas itself, because it is an expression of ideas, which makes it a tangible property and that warrant for protection. It has been argued by many that the copyright law plays a dual characteristic where on the one hand it canvasses for the freedom of expression; on the other hand it is also imposing a restriction, because it is not allowing the other to express something just because it has already been articulated earlier.[18] However, it cannot be seen as an imposition on freedom to express, since the freedom is to express their ideas and not copy that of other. Because the basis of law is “Though shall not steal”.[19]

Under the Act, it won’t be violation of copyright work if it is been produced under the ambit of “fair use”. However, Article 19 calls for reasonable restriction under which a restriction can be imposed for the purpose of ‘morality’. When we look into the concept of “fair use” we understand that it is line with the reasonable restriction of Article 19.[20] So, we see here that how the freedom of expression has also enshrined in it the concept of fair use.

Recognition of Intellectual Property Rights under the Constitution

The researcher at this juncture would like to throw some light on how the recognition of Copyright and IPR has been followed under our constitution, by the court. This recognition of the IPR rights from other constitutional provision makes it an organic law like the constitution.

The Judicial Approach

The researcher under this would like to point a case of Entertainment Network India Ltd. (ENIL) v. Super Cassette Industries Ltd^[21]. But before going taking a dip into that case, it is important to turn our attention to under the definition of the copyright and Patent. Both of these Act, gives the owner of the holder of this intellectual property an exclusive right over that property and the owner has the right to transfer this right it to anyone it want.^[22] Therefore, it is a kind of a contractual right and from this logic the court has went ahead in the ENIL case. The court opined that:-

“The freedom to contract is the foundation of economic activity and an essential aspect of several Constitutional rights including the freedom to carry on trade or guaranteed under Article 19(1)(g) and the right to property under Article 300A of the Constitution of India.”^[23]

It is important to note here that the court has not brought the IPR under the Freedom of expression, according to the researcher this could be because Freedom of expression horizon is wider. All these Acts have put certain limitations on the owner of the Intellectual property, which would be very hard to be justified if these rights would owe their origin to the Article 19(1) (a).   Moreover, the court also took into its ambit Article 300(A), which kind restricts the right, because it is a legal right.[24] The reason is that in India is a socialistic right and sometimes these rights gives too much power in the hand on the owner of the property, which makes it difficult for the state in administration of the state. Therefore, the clause like compulsory licensing, where the government takes the property in the interest of the public owe their origin from this clause. The court in other cases also has said that these are to be kept wide, however in case of public interest certain restriction could be imposed.^[25] Therefore, we see that how smartly the court has justified the various provisions of the various Intellectual properties Act and has also left scope for their further development.

The Clinical Trial Data

It is very important to understand at this juncture to understand that with the acceptance of the nexus between the constitution and IP rights. There are two things which can be inferred one is that the apart from the Act, the court has recognized other provisions which call for the putting the limitation on the IPR. On the other hand this also has led to the understanding of the intellectual property to a new zenith.

At this juncture the researcher would like to point take a dip into the other issue whether the clinical trial data, can be given a separate Intellectual property. It shall be understood that most of the work of pharmaceutical industry is based on the Research and Development, and there is plethora of Data which they collect. ^[26] With time the new medicines owe its origin to other chemicals, therefore the amalgamation of the trials can lead to new medicines.^[27] The data collected for the earlier chemicals, needs some protection because it had been used in future course.^[28] There is a lot of money is also been spent in the R&D of that work.^[29] There is also one major implication of the Data Trial, it is that if the generic industry comes up for the approval of the medicine with slight change in the procedure and relying on the data of the pre-clinical trial of the patent medicine now they cannot do.^[30] Therefore, it will delay the entrance of the generic industry.  This in particular could be little harmful for the country, but then again on Article 300 A, polity can put limitation, under the ambit of the public interest.

Therefore, there has always been a huge hue and cry for the protection of these Data. It is understood, to be the extension of the patent, however it is not. ^[31] Article 39.3 of the TRIPS agreement, talked about the protection of the clinical Trial Data.^[32] Though, it has been argued by the various scholars that, what this provision requires is that there shall be the protection to be provided to all this data, but the company need not be given the exclusive rights. However, one thing is acceptable which is that this data should fall in the ambit of property under Article 300 A, as understood in the ENIL case. Therefore, clinical protection is something which needs to be given.

The other provisions

The other provision which gives the power to the union to enact laws in respect to IP rights under the constitution are under Entry 49 of List I of Schedule VII. Article 51 A (h) talks about the development of the scientific temper, and as has been mentioned before one of the objective of the IP regime, in this case say for giving the patent it promotes the scientific fraternity for the promotion of new invention. In the word of out Late Prime Minister Jawahar Lal Nehru, it is a process through which you challenge the present notion and try to bring in the new evidence by doing trials to disapprove the earlier notion and bring the change.^[33] The other facet of the scientific temper is that it has to develop the society morally.^[34] This is something which is been reflected in the IPR provisions and i.e. the promotion of the science. The other provision which also calls for IPR protection is Article 48 of the Constitution which calls for Agriculture and animal husbandry on scientific lines.^[35] Therefore, we see that the IPR protection is something which can be gathered from our constitution itself.

Contouring the IPR provisions in Light of the Constitution

The researcher has already pointed out that what is the importance of the project, because the recognition of helps us understand the various steps which is been taken by the polity and the judiciary, under the ambit of the constitution. At this juncture, the researcher would like to look into the some of the quandaries of IPR and the approach of judiciary in resolving it juxtaposes to the constitution of India. To understand this researcher would like to point out the Novartis AG v. Union of India[36] (Novartis).

Novartis case and its nexus with the Constitution

It is important to understand some of the important aspect the India is a developing country, so where on the one hand it promotes for liberalization and entry of the private sector and development of its market. By that it means that the promotion of better R&D and new inventions, however on the other India is a socialistic country and that means that a special care for the need to be taken, because they are three problems which an Indian citizen has to face one is that of affordability, availability, accessibility. Therefore public health is a very important function which needs to be performed by the state.[37] Moreover, the apex court in their judgment has interpreted Right to Life under Article 21 of the constitution which includes right to health and medical care.[38]

At this juncture let us turn out attention to the Novartis case, wherein the constitutionality of section 3(d) of the Indian patent Act, 1970 was challenged.[39] This was a case of a drug named Glivec, a critical drug used for the treatment of leukaemiaon. Now, there is another drug which is a modified version of the earlier drug, on that a patent was being filed saying that it has an enhanced efficiency.[40] The patent was rejected and the case came up before the apex court. Firstly, section 3(d) of the 1970 Patent Act was challenged as being unconstitutional under Article 14, on the ground that it is arbitrary, illogical and vague.[41] The court said that it is not arbitrary or vague and it has been incorporated for a special purpose so as to prevent ever greening of patent and that is something which is in consonance with the TRIPS agreement.[42] Secondly, the court rejected the argument that it has increased the efficiency of the drug.

At this juncture it shall be noted that it is only an ostensible reason which has been given by the court, we need to go beyond the boundaries and understand the real reason, for that we need to comprehend the Madras High Court judgment. It was pointed out that the reason why section 3 (d) is because of the ever greening of patent and the purpose is to ensure that the purpose of the state which is to maintain the public health. Without going into the profundity of the judgement, there seems to be little doubt that this judgment owe its origin from the constitution, which imposes a duty on the state to ensure that the people get the medicine at the reasonable price. The drug was of a Lakh per month and the generic drug was nine-tenth less than the original and if that drug would have been rendered illegal because of the grant of patent. So, the impact of it could easily being imagined. Therefore, we see here that how there has been a nexus been drawn between the paten Act and the constitution so as to shape the IP rights.

Constitutional Rights and copyrights Law

The researcher at this juncture would like to deal with two things firstly, the copyright amendment under the line of the constitutional provision, and secondly, what are the inherent limitation which can be contoured because of these provisions.

Effect of constitutional provision under copyright Act

The copyright brought an amendment under which an adaption of the work in a format designed for those disable people who has a visual impairment. It has been said by many scholars that it is against the constitution since it discriminates against those who can read Braille and those who cannot.[43] It has been argued by many scholars that it is against the Article 14 and Article 21 which calls for equal treatment and juxtaposes to that every shall have right to access to all the materials in there formats they want. However, because of the impairment certain class of people devoid of that knowledge.[44] Though the amendment has increased the scope of those people who are having disability, however there still seems to be a need to for enhancing the provision n light of the constitutional provision.

Inherited Limitations

One of the inherent limitations which the researcher would like to mention here is that of in case of Rape Victims. It is necessary to keep the name of the victims anonyms so as to ensure that no harm is been caused to them as they are already facing a lot of problem in the society. Media rights which can be extended to copyright, comes also with certain limitations i.e. what they are reporting should not harm the person concerned.[45]  Therefore, in line with that only the IP rights have inherent limitations when it comes in nexus with public interest.

Conclusion

On the raison d’être of the above discussions, is that it discloses the in and out of the Intellectual property right juxtaposes to the constitution. The meticulous study lets us understand that intellectual property has evolved manifold over the progression of time due to the late advances in the continuous procedure of globalization. However, in amid of  all that there has been constitutional provision to contour it.

Freedom of speech and expression is the basis of any developed government, it is one of those rights you have being born on this earth and the only thing which the state does is that it puts restriction on those rights. Therefore, copyright is an extension of the former rights therefore that being inherent rights so is that copyright. Other Intellectual property rights also are like the extension of the freedom of expression therefore, all those rights are also inherent rights of the originator. These rights promote the originator of the intellectual property to come up with a good work and that is the duty of the state because it helps in the economy of the state.

The court has taken to breed this IPR law from Article 19 (g) by pointing out that it is a contractual right. According to the researcher the reason which can be attributed for this step by the court is that Freedom of expression has a wider horizon and that would have created a greater quandary in shaping the IPR provisions. When we talk about copyright law it is only the expression of ideas which has the copyright protection, however when we talk about the ambit of Freedom of speech it might argue about the protection of ideas, as what amounts to expression is something which is a matter of moot.

Article 300 A of the constitution talks about the property and the court has said that in that property includes Intellectual property, and from there it can be argued to bring in the ambit of IPR clinical trial data. However certain limitation can be called for in the public interest.

In summary the interplay in the constitution and the Intellectual property rights has a played a major role in the jurisprudence of comprehending this law. Though the IP rights have been there for now more than two decades, however the recognition of it in today’s time is more than ever. IP rights stems from the constitution which makes it an organic law like constitution and give a breathing space for the development. One should always remember that it is not called Intellectual property Law but Intellectual property Rights and the shaping of it should be done having an holistic approach keeping in mind the constitutional mandate.

Disclaimer: Please note that the content of this blog post is the original work of Advocate Anil Kumar Mehrotra and any views or opinions expressed are his own. While we have made every effort to ensure the accuracy and completeness of the information provided, we do not guarantee its authenticity or reliability. We would like to make it clear that we will not be liable for any act of plagiarism committed by the author. The author alone takes full responsibility for the originality and authenticity of the content provided in this article. We encourage our readers to exercise their own discretion and judgment when using the information provided in this article. If you have any questions or concerns, please feel free to contact us.

[1] The law of Lexicon (3^rd edn, 2012) Vol. 3, P.1143

[2] ibid

[3] ibid

[4] Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR), Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR), The Indian Constitution, 1950; and other various International Human Rights Organ.

[5] The Indian Copyright Act, 1957, S 14. It  deals with the meaning of “copyright” and provides that it is an “exclusive right” A copyright owner has exclusive right : (i) to copy the work; (ii) to issue copies of the work to the public; (iii) to rent or lend the work to the public; (iv) to perform, show or play the work in public; (v) to broadcast the work or include it in a cable programme; (vi) to make an adaptation of the work or do any of the above in relation to an adaptation.

[6] Madhavi G Divan, “Copyright” in Facets of Media Law(Eastern Book Company, Lucknow 2006) 9

  [7] The Indian Copyright Act, 1957, S 51. It identifies the varieties of acts, which infringes copyright and other rights of the owner created by the Act. Accordingly copyright of a work shall be infringed when any person without a proper licence from the owner : (a) does anything, the exclusive right to do which is conferred upon the owner by the Act; (b) permits to use any place for the performance of a copyrighted work in public for profit, unless he was not aware or had no reasonable grounds for believing that such performance would be an infringement of copyright ; (c) makes infringing copies for sale or hire. or selling or letting them for hire; (d) distributes infringing copies either for the purposes of trade or to such an extent as to affect prejudicially, the owner of copyright; (e) by way of trade exhibits in public; (f) imports infringing copies, except for the private and domestic use of the importer.

[8] Dr. Sreenivasulu N.S.& Somashekarappa Freedom of Speech & Expression and the Issues of Intellectual Property and Copyright

 <http://manupatra.com/roundup/370/Articles/Freedom%20of%20Speech.pdf>

[9] Romesh Thappar vs The State of Madras AIR 1950 SC124

[10] W.R. Cornish. Intellectual Property, (Universal Law Publishing  Co. New Delhi 2001)21

[11] ibid

[12] The Berne Convention for protection of Literacy and Artistic Works (Paris Act, 1971) and UDHR.

[13] UDHR art 27; Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author; International Covenant on Economic and Social Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICESR), art 15,To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author

[14] It is to be noted that the copyright law had continuous amendment with the latest of that being in 2010 in the same manner the scope of Article 19 has been developed over the period of time. 

[15] Associated Press v. U.S. 326 US 1

[16] The United States Constitution, 1789; art 1, sec 8.

[17] Prashant Reddy, ‘Article 300A of the Constitution: A constitutional right to ‘data exclusivity’?’(De-Coding Indian Intellectual Property Law, Spicy IP May 1 2010) < http://spicyip.com/2010/05/article-300a-of-constitution.html> accessed 1 November 2015

[18] VK Ahuja, Intellectual Property Rights in India (Volume 1, Lexis Nexis, Butterworths Wadhwa, 2009)

[19] ibid

[20] The Indian Copyright Act, 1957, S 52; This section calls for the concept of “Fair use”

[21] CIVIL APPEAL NO. (2005) 5114

[22] The Indian Copyright Act, 1957, S 14

[23] Entertainment Network India Ltd. (ENIL) v. Super Cassette Industries Ltd CIVIL APPEAL NO. 5114 (2005)

[24] Reddy (n 17)

[25] Penguin Books Limited v. India Book distributors and ors 1985] AIR 29(DEL); R.G. Annand v. Delux. [1978]AIR 16131(SC)

[26] Animesh Sharma, ‘Data Exclusivity With Regard To Clinical Data’(2007) 3 ILJT 82

[27] Ibid.

[28] K. Satyanarayana, S. Srivastava &N.K. Ganguly, ‘Data protection issues in India’ (2006) Indian J Med Res 723

[29] G. Lee Skillington, ‘The Protection of Test and Other Data Required by Article 39(3) of TRIPS’ [2003] 1 (8) NW.J. INT’LL. & BUS

[30] Satyanarayana (n 28)

[31] Sharma (n 26)

[32] Agreement on Trade-Related Aspects of Intellectual Property Rights (15 April 1994), art 39.3; “Members, when requiring, as a condition of approving the marketing of pharmaceutical or of agricultural chemical products which utilize new chemical entities, the submission of undisclosed test or other data, the origination of which involves a considerable effort, shall protect such data against unfair commercial use. In addition, Members shall protect such data against disclosure, except where necessary to protect the public or unless steps are taken to ensure that the data are protected against unfair commercial use.”

[33] Jawaharlal Nehru, the discovery of India (Penguin India; New edition, 2008) 152: “[What is needed] is the scientific approach, the adventurous and yet critical temper of science, the search for truth and new knowledge, the refusal to accept anything without testing and trial, the capacity to change previous conclusions in the face of new evidence, the reliance on observed fact and not on pre-conceived theory, the hard discipline of the mind—all this is necessary, not merely for the application of science but for life itself and the solution of its many problems.” 

[34] Mahanti Subodh, ‘A Perspective on Scientific Temper in India’ (2013) 1 JST

[35] The Constitution of India 1950, art 48

[36] Civil Appeal No. (2013) 2706-2716

[37] The Constitution of India 1950, art 38 and 39.

[38] Consumer Education and Research Centre v. Union of India AIR 1995 SC 922.

[39] The Indian Patent Act, 1970 sec 3(d):- the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant.

[40] Novartis AG v. Union of India Civil Appeal No. (2013) 2706-2716

[41] ibid

[42] ibid

[43] N.S. Sreenivasulu Law Relating to Intellectual Property( Partridge 2013) 432

[44] Somashekarappa (n 8)

[45] Madhavi G Divan, “Copyright” in Facets of Media Law(Eastern Book Company, Lucknow 2006)9

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Cadila Health Care Ltd. (appellant) filed a suit for injunction against Cadila Pharmaceuticals Ltd. (respondent) in the District Court at Vadodara regarding the use of the brand name “Falcitab” for a medicine manufactured and sold by the respondent. The appellant claimed that the brand name was similar to its drug “Falcigo” and could lead to confusion and deception among consumers.

The appellant’s drug, “Falcigo,” contains Artemether as the active ingredient and is used for the treatment of cerebral malaria, commonly known as ‘Falcipharum.’ The appellant applied for the registration of the trade mark “Falcigo” in Part-A, Class-5 of the Trade and Merchandise Marks Act in 1996 and received permission to market the drug under that trade mark from the Drugs Controller General (India) in October 1996.

On the other hand, the respondent received permission from the Drugs Controller General (India) to manufacture a drug containing Mefloquine Hydrochloride in April 1997 and to import the drug from abroad. The drug was also used for the treatment of ‘Falcipharum Malaria’ and was sold under the brand name “Falcitab.”

In defense, the respondent argued that the prefix “Falci” in its brand name was taken from the name of the disease ‘Falcipharum Malaria’ and it was a common practice in the pharmaceutical trade to use part of the word of the disease as a trade mark. Additionally, both drugs were Schedule “L” drugs, which could only be sold to hospitals and clinics, reducing the chance of confusion and deception among consumers.

The Extra Assistant Judge, Vadodara dismissed the interim injunction application in May 1998, finding that the two drugs “Falcigo” and “Falcitab” differed in appearance, formulation, and price and there was no chance of deception or confusion among consumers. The appeal filed by the appellant before the High Court also met with no success, as the court concluded that there was little chance of one product being passed off as the other due to the differences in the disputed marks and the fact that the drugs were only sold to hospitals and clinics.

Supreme Court

The principles on which these cases are required to be decided are based on the Trade and Merchandise Marks Act of 1938. Under Section 28 of the Act, a registered proprietor of a trade mark in Part A or B of the register has an exclusive right to use the trade mark in relation to the goods in question and to obtain relief in case of infringement.

For unregistered trade marks, a passing off action is maintainable under Section 27(2) of the Act. The passing off action is based on the principle that no one has the right to represent their goods as those of another person, and the modern tort of passing off has five elements:

(1) a misrepresentation,

(2) made by a trader in the course of trade,

(3) to prospective customers or ultimate consumers of goods or services,

(4) which is calculated to injure the business or goodwill of another trader, and

(5) which causes actual damage or is likely to cause damage to the business or goodwill of the trader.

The defendant had argued that in the last four decades had clearly established that what had to be seen in a passing off action was the similarity between the competing marks. However, the court disagreed with this argument and noted that the conclusion reached in Dyechem’s case was contrary to the binding precedent set in the cases of National Sewing Thread Co. Ltd.’s case , Corn Products Refining Company’s case , Amritdhara Pharmacy’s case , Durga Dutt Sharma’s case, and Hoffmann-La Roche & Co. Ltd.’s case.

The court noted that in Dyechem’s case , the court had incorrectly concluded that the difference in essential features was relevant. The court had applied three tests to determine the similarity between the two marks “Piknik” and “Picnic”.

The three tests were:

(1) whether there was any special aspect of the common feature that had been copied,

(2) the mode in which the parts were put together differently, and

(3) whether one should pay more regard to the parts that are not common when there are common elements.

However, the court in Dyechem’s case concluded that the dissimilarities in the script and manner of writing the two words were more important than the phonetic similarity or the similarity in the use of the word “PICNIC” for “PIKNIK”.

The court noted that it was unable to agree with the conclusion reached in Dyechem’s case and noted that the principle of phonetic similarity should not be disregarded when the manner in which the competing words are written is different. The court noted that this conclusion was contrary to the binding precedent set in the cases of Amritdhara’s case and Durga Dutt Sharma’s case, where the phonetic similarity was applied to judge the two competing marks.

The court further noted that the fact that both drugs were sold under prescription was not sufficient to prevent confusion, as there was a high degree of possibility of accidental negligence due to the varying infrastructure for supervision of physicians and pharmacists across the country. The court noted that strict measures were required to prevent any confusion arising from similarity of marks among medicines, as confusion between medicinal products could be life-threatening, not merely inconvenient.

The court also noted that public interest would support a lesser degree of proof showing confusing similarity in the case of trade marks in respect of medicinal products, as compared to non-medicinal products. The court noted that in hospitals, drugs could be requested verbally and/or under critical/pressure situations, and many patients may not be in a position to differentiate between the medicine prescribed and bought.

The court noted that while the decisions of English courts were relevant in understanding the essential features of trade mark law, when dealing with the sale of consumer items in India, the differences between England and India had to be taken into account. The court concluded that English principles could not be applied in their entirety in India with no regard to Indian conditions.

The post Case Brief: Cadila Health Care Ltd. vs. Cadila Pharmaceuticals Ltd. appeared first on LexForti .

Trademark / Trademarking your brand is an important step for any business, big or small. It helps to protect the unique identity of your brand and ensures that your products or services are consistently of high quality. In today’s digital age, it’s also essential to protect your online assets and prevent legal disputes. In this article, we’ll explore 10 reasons why you should consider trademarking your brand.

10 Reasons to Trademark your Brand!

1. Protecting your brand identity:

A trademark is a way to protect the unique name, logo, or slogan that identifies your brand. By registering your trademark, you can prevent others from using it or something similar without your permission. This is especially important if you have a distinctive brand that sets you apart from your competitors.

Having a distinctive brand is especially important in today’s competitive business environment. A strong brand can help to set you apart from your competitors and establish your business as a leader in your industry. By registering your trademark, you can protect the unique elements of your brand and ensure that your brand remains strong and distinct. This can help to build customer loyalty and trust, leading to long-term success for your business.

2. Ensuring the quality of your products or services:

By registering your trademark, you are pledging to maintain a certain level of quality for the products or services that you offer. This can help to build trust with your customers and establish your brand as a reputable and reliable source for the goods or services that you provide.

For example, if you own a restaurant and have registered your trademark, you are pledging to consistently provide delicious and well-prepared meals to your customers. This can help to build a loyal customer base and establish your restaurant as a go-to destination for high-quality food.

Another example is a clothing company that has registered its trademark. By pledging to maintain a certain level of quality for its clothing, the company is helping to build trust with its customers and establish itself as a reliable source for stylish and well-made garments.

Overall, registering your trademark and pledging to maintain a certain level of quality can help to build trust with your customers and establish your brand as a reputable and reliable source for the goods or services that you provide.

3. Creating a strong brand presence:

A strong brand presence is essential for attracting and retaining customers. By registering your trademark, you can create a clear and consistent brand identity that will help to build customer loyalty and recognition.

For example, if you own a coffee shop and have registered your trademark, you can create a clear and consistent brand identity by using the same logo, color scheme, and font on all of your marketing materials. This can help to create a cohesive brand image that is easily recognizable by your customers.

Another example is a clothing company that has registered its trademark. By consistently using the same logo and color scheme on all of its products, the company can create a strong brand presence that is easily recognizable by its customers.

Overall, registering your trademark and creating a clear and consistent brand identity is essential for attracting and retaining customers. It helps to build customer loyalty and recognition, which are key factors in the success of any business.

4. Protecting your business reputation:

A trademark can help to protect the reputation of your business by preventing others from using your brand name or logo in a way that could damage your reputation or confuse customers.

For example, if Company A has a well-known and respected brand, and Company B starts using the same or a similar brand name or logo for their products or services, it could cause confusion among customers who may mistake the products or services of Company B for those of Company A. This could lead to a loss of customers and damage to the reputation of Company A. By registering a trademark, Company A can prevent others from using the same or similar brand name or logo, which helps to protect the reputation of the company and its products or services.

5. Establishing exclusive rights to your brand:

When you register your trademark, you establish exclusive rights to use your brand name, logo, or slogan. This means that others cannot use your trademark without your permission, even if they are using it in a different industry or geographic location.

This is because the purpose of a trademark is to identify the source of the goods or services and to distinguish them from those of others. If others were allowed to use your trademark without your permission, it could create confusion among consumers as to the source of the goods or services, and dilute the distinctiveness of your trademark.

Therefore, registering a trademark gives you the legal right to prevent others from using your trademark without your consent, and to take legal action against those who do so.

6. Enhancing the value of your business:

A strong and well-protected trademark can enhance the value of your business by making it more attractive to potential buyers or investors.

First, a trademark that is well-known and has a positive reputation can increase the perceived value of the business’s products or services, as customers are more likely to purchase from a company that they know and trust.

Additionally, a strong trademark can make a business more attractive to potential buyers or investors, as it can represent a valuable asset that can be leveraged to generate revenue and increase market share. For example, if a company has a well-established and respected brand, it may be able to charge a premium price for its products or services, and may be more successful in attracting and retaining customers. ‘

Additionally, a strong trademark can make a business more attractive to potential buyers or investors as it represents a valuable intangible asset that can be leveraged to generate revenue and increase market share. Overall, a strong and well-protected trademark can contribute significantly to the value and success of a business.

7. Preventing legal disputes:

By registering your trademark, you can prevent legal disputes with others who might try to use your brand name or logo. This can save you time, money, and stress in the long run.

Here are a few examples of how registering a trademark can prevent legal disputes and protect a business:

1. Company A registers its brand name and logo as a trademark. Company B begins using a similar brand name and logo for its products. Company A can take legal action against Company B to stop them from using the infringing trademark and to seek damages for any harm that has been caused.
2. Company C is considering using a brand name and logo that are similar to those of Company D, which is already registered as a trademark. Before proceeding, Company C performs a trademark search and discovers that the brand name and logo are already registered to Company D. As a result, Company C decides not to use the infringing trademark and chooses a different brand name and logo to avoid potential legal disputes.

Overall, by registering your trademark, you can establish your exclusive rights to use your brand name and logo and prevent others from using them without your permission. This can save you time, money, and stress in the long run by avoiding potential legal disputes.

8. Expanding your business:

A registered trademark can help you to expand your business by giving you the legal protection you need to enter new markets or launch new products or services under your brand.

Having a registered trademark can help you to expand your business in several ways:

1. Legal protection: By registering your trademark, you establish your exclusive legal rights to use your brand name and logo in connection with your goods or services. This legal protection can give you the confidence and security you need to expand your business into new markets or launch new products or services under your brand.
2. Brand recognition: A registered trademark can help you to build brand recognition and establish a strong brand identity. This can be especially important when entering new markets or launching new products or services, as it can help to differentiate your business from competitors and establish trust with potential customers.
3. Licensing and franchise opportunities: A registered trademark can also open up opportunities for licensing or franchising your brand to others. For example, if you have a successful brand and a registered trademark, you may be able to license your brand to other companies or individuals who want to sell your products or use your services under your brand.

Overall, a registered trademark can provide the legal protection and brand recognition you need to confidently and successfully expand your business into new markets or launch new products or services.

9. Protecting your online assets:

In today’s digital age, it’s important to protect your online assets as well as your physical ones. By registering your trademark, you can prevent others from using your brand name or logo on social media, domain names, or other online platforms.

For example:

1. Social media: If you register your trademark, you can prevent others from using your brand name or logo as a username or account name on social media platforms. This can help to prevent confusion among customers and protect your brand’s reputation.
2. Domain names: A registered trademark can also help you to prevent others from registering domain names that incorporate your brand name or logo. This can be important for protecting your brand’s online presence and preventing cyber squatting (the practice of registering a domain name with the intention of profiting from the goodwill of someone else’s trademark).
3. Other online platforms: A registered trademark can also give you the legal protection you need to prevent others from using your brand name or logo on other online platforms, such as online marketplaces, e-commerce sites, or app stores.

Overall, by registering your trademark, you can protect your brand online and prevent others from using your brand name or logo in a way that could confuse customers or damage your reputation.

10. Protecting your intellectual property:

Your brand is a form of intellectual property, and a trademark is a way to protect it. By registering your trademark, you can ensure that your ideas and creations are protected from being used without your permission.

Intellectual property refers to creations of the mind, such as inventions, literary and artistic works, and symbols, names, and images used in commerce. A trademark is a type of intellectual property that protects brand names, logos, and other distinctive signs that are used to identify and distinguish the goods or services of one business from those of others.

By registering your trademark, you can ensure that your ideas and creations are protected from being used without your permission. This can give you legal recourse if someone else tries to use your trademark without your consent, and can help to prevent others from benefiting from your hard work and creativity without your permission. Additionally, a registered trademark can act as a deterrent to others who may consider using your trademark without your permission, as they will be aware that you have taken the necessary steps to protect your intellectual property.

Conclusion

Trademarking your brand has numerous benefits for businesses of all sizes. It helps to protect your brand identity, ensure the quality of your products or services, create a strong brand presence, protect your business reputation, establish exclusive rights to your brand, enhance the value of your business, prevent legal disputes, expand your business, protect your online assets, and protect your intellectual property. By taking the time to register your trademark, you can give your business the legal protection it needs to thrive in today’s competitive market.

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Why Trademark registration is important?

Federal trademark registration is important and has several advantages, including notice to the public of the registrant’s claim of ownership of the trademark, a legal presumption of ownership nationwide, and the exclusive right to use the trademark on or in connection with those goods or services set forth in the registration. Federal registration also allows the owner of a trademark to sue for infringement in the Federal court and to stop the importation of infringing material.

Trademark registration is essential because it helps to provide your brand or company with its own name or logo. It solidifies your company and ensures that no one else can use the names or logos associated with you. It protects your company and its property.

Richard J. Brandenstein, Founding Partner at Fusco, Brandenstein & Rada, P.C.

Five important things to consider:

Comprehensive Trademark Search

You’ll want to complete a comprehensive trademark search to help identify any legal barriers to your company’s use or registration of its trademark before you actually begin to use the trademark or have it registered with the U.S. Patent and Trademark Office (USPTO). The data you discover during the comprehensive search will allow you to determine which classification you should file in and what kind of specimens to use as evidence. Even if your proposed trademark is currently registered; you may still successfully register your trademark depending on the classification of goods and services.

Registration before actual usage of Trademark

If you’ve not yet begun selling your goods and services you can still apply for your federal trademark using the future use application. The future use application essentially holds your place in line until you are ready to begin use. Another advantage is that your filing date will serve as the date of the first use of your mark. This will be very important in case a conflict develops with another mark. The USPTO will want to see proof that you have begun selling your goods and services to consumers. You will have six months to provide proof and can request additional six-month extensions for up to three years.

Trademarking different elements

Remember that a brand name, a logo, and a slogan are all separate and distinct trademarks which belong on their own application for review with the trademark office. If you are on a limited budget, you’ll definitely want to consider prioritizing which business asset you trademark first. Many people opt to trademark their business or main brand name as a word mark first. Or, if you have a clever tagline that is really helping you turn curious people into buyers, it makes sense to protect that trademark first.

Taking note of Classification

There are 45 classes in which your trademark can be represented. Classifications 001-034 are for goods. Classifications 035-045 are for services. You may apply to register your trademark in multiple classes. These classifications help distinguish the trademarks. It is common for different trademark owners to register the same mark for different products in different classes. For example, think Delta airlines and Delta faucets. Even though both registrations are for the same mark (Delta) they may coexist as federal registrations because they are unlikely to lead to any consumer confusion in the marketplace.

Submitting a specimen

You must submit a specimen as evidence of use for your trademark. There are specific guidelines to follow when submitting your specimen. Some requirements of your specimen are that; it must represent the goods and services that are being identified in your application.  The specimen must show the use of the mark on the goods, on containers or packaging for the goods, on labels or tags affixed to the goods, or on a display associated with the goods. To constitute a display associated with the goods, a specimen must show the use of the mark directly associated with the goods and such use must be of a point-of-sale nature. In addition, you must show the URL and date from the webpage of your specimen.

Registering a new name as a trademark takes at least a year and carries a risk of rejection, even if you have a trademark attorney research it and file it for you. As a new business owner, you should consider buying an existing trademark registration.

Jeremy Green Eche | Managing Attorney of JPG Legal | Communer.com

The post 5 Things to consider before filing for Trademark Registration in the US appeared first on LexForti .

With the rise in trade and commerce across the world, countries are more and more looking forward towards a trade barrier free world, where imports and exports can help every possible nation to grow with revenue and resources. Analysing the present issue, Adam Smith, the father of modern economics, emphasized the importance of free trade and stated that if countries remove the trade barriers and allowed free flow of goods from one nation to another that would invite greater prosperity to the countries and fulfil the interest of its citizens.[1]

But, free flow of goods can somewhere down the line infringe the rights of owner of an original product, as counterfeiting and forgery of the products are the unwanted evils that haunt the idea of free trade and commerce. Thus, rights of the owner of a product needs to be protected to ensure that the products are not counterfeited and thereby sold, harming the rights and revenue of the owner, and putting a threat to new and noble ideas.

The process of selling a product across borders via registered or unregistered trade channels, but without the consent of the owner of the product is known as parallel importation. For instance, a book shall be sold for say Rs. 500 only in India as per the wish and fancy of the owner of the book. But, the author wants the same book to be sold in Bangladesh at a relatively lower price of Rs. 250.

Now, the book sold in Bangladesh can be easily bought and imported in India by traders and as a result sold for price relatively lesser than 500. Thus, the following can infringe the rights of the author as though the books were same, but they were meant to be sold in two different jurisdictions. But, due to parallel importation of goods, the traders can create a grey market which results in infringing the intellectual property rights of the owners and denting massive revenues from them.

But, the owner cannot enjoy absolute autonomy over its rights as this would again be detrimental to trade and business. As for instance, a car manufacturing company exhausts its rights over its product immediately after the car is sold from the factory. Later, it cannot claim rights and revenue after every sale of the car in the market. Thus, after being sold from the factory, the car may be sold to the retailer, then to the customer, who may thereby use it for some years and then sell to another person, but the company cannot claim infringement of rights after every sale, as the rights get exhausted after the first sale.

Following from above, there are majorly three kinds of exhaustion of rights, i.e. Regional Exhaustion wherein the following system restricts the circulation of a product to a specific region or area. If the owner circumscribes the circulation and sale of its product within the territory of a particular nation, restricting imports and exports of the product, then the following system is known as National Exhaustion. Lastly, in International Exhaustion the owner cannot restrict the trade and sale of its goods once it is circulated or introduced anywhere across the world.

Regional system of exhaustion follows the most restrictive approach, whereas international exhaustion system follows the least restrictive measures. Different countries across the world follow different pattern while dealing with the present issue. Several African countries such as Ghana, Liberia and Tunisia, while Philippines in Asia, follow the system of National Exhaustion of Rights. It is only the European Union that follows the Regional Exhaustion of Rights prominently while countries such as China, India and Malaysia follow a system of International Exhaustion.[2]

In India, Section 29(1) of the Trademark states that-“A registered trademark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in course of trade, a mark which is identical with, or deceptively similar to, the trademark in relation to goods or services in respect of which the trade mark is registered and in such manner as to render the use of mark likely to be taken as being used as a trademark.” Further, a person uses a registered mark if:-

1. –
2. –
3. Imports or exports goods under the mark;

So, importation and exportation of trademark is considered as use of a mark. Now, this use is done by any person authorized or unauthorized, i.e. if a person imports or exports goods which are similar to the trademark without prior consent of owner, it shall be considered as infringement of trademark as per Section 29(1) read with Section 29(6)(c). For instance, A in Bangladesh sells printers at a price of Rs. 2,000. B, a trader in India, buys the printer and sells it in India at Rs. 5,000. In the present situation there is no infringement of trademark, but, if the printer is solely for sale in Bangladesh, then the same is infringement of trademark.[3]

Section 30(3) on the other hand mentions about exception to infringement of trademark. It states that “where the goods bearing a registered trademark are lawfully acquired by a person, the sale of the goods in the market or otherwise dealing in those goods by that person or by a person claiming under or through him is not infringement of a trade by reason only if:-

1. –
2. The goods having been put on the market under the registered trademark by the proprietor or with his consent.”

Thus, there shall be no infringement of the trademark, if by prior consent of the owner the goods are circulated in the market and thereafter the goods are sold further to another person. For instance, a company certifies A as the proprietor of goods in the market. Now, A sells it to a retailer B who thereby sells the product to the customer. Now, B shall cannot be sued by the company for infringement of trademark as the rights of the company got exhausted the moment it sold its product to A.[4]

The position of the present situation has been simplified in India through case laws such as Kapil Wadhwa v Samsung Electronics[5], and Western Digital Technologies v Ashish Kumar, wherein the Court stated that after analyzing the communication of India in the Uruguay rounds of WTO in 1985, and report of the Standing Committee on the Copyright (Amendment) Bill, 2010, it is explicit that India follows the concept of International Exhaustion of Rights. Further, the Court stated that it cannot prohibit parallel importation in the country, as firstly it follows the system of international exhaustion of rights, and secondly, parallel importation would help in creating a competitive market which ultimately would benefit the consumer.

But, while doing so the trader should provide a message while selling the product that the owner of the product shall not be liable for any discrepancy in the product. For instance, if Samsung printers are being sold through parallel importation, then the seller shall provide a message while selling the printer that in case of any discrepancy in the product, Samsung shall not be liable for the faulty product. This, shall withhold the reputation of the owner of the product, and shall further absolve them of any liability which might arise during sale through parallel importation.

Though the stand of judiciary is crystal clear in the present situation but the government should introduce more regulations and policies which could deter the import of counterfeited products in the market. Strengthening the custom security and tracking of counterfeited product should be undertaken to protect the rights of the innocent and diligent companies.    

[1] Adam Smith, “The Wealth of Nations”, Oxford, England, 2002.

[2] Christopher Heath, “Parallel Imports and International Trades”, WIPO Journal,

[3] Shyamolima Sengupta and N V Saisunder, “Concept of Parallel Imports and the Principle of Territorial Exhaustion of Rights under the Indian Trademarks Act, 1999”, Lexology, March 30, 2020.

[4] “Legality of Parallel Imports vis-a-vis Trade Marks Law”, August 21, 2018.

[5] 2013 (53) PTC 112 (Del) (DB).

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Rohit: How would you like to introduce yourself to our audience?

My name is Jason Rosenblum and I’m the founding member of The Law Office of Jason H. Rosenblum, PLLC, an Intellectual Property Law Firm. So, we protect our clients – their products, their brands, their businesses – from getting ripped off, so they can focus on their business. 

We have clients in the software industry and many entrepreneurs who are starting their businesses, take my services. Back in 2008 and 2009, when a lot of people had their side gigs and their side hustles, which a lot of them have now made it full-time.

So, it’s great to see when a client quits their day job for the side job and it’s a success. My clients range from solopreneurs, all the way up to, you know – I think my largest client has around 300+ employees! 

Rohit: That’s really amazing! 

Jason: And…some of them, you know, even some of the smaller ones, their revenues are pretty high! So, you know, they’re very successful clients, in all sorts of areas- of fashion, music, a lot of software-based (or related to it). 

Rohit: So your clientele is very diverse, isn’t it?

Jason: Correct. You know, sometimes, we’d have patents, and attorneys will be very focused, in a very specific area, because that’s where their technical background is? But for the majority of the business – trademarks, design patents and copyrights – it might help to know a little bit about the technical aspect, but you know the fun part about it is learning something new in a particular area of study. 

Rohit: Yeah, exactly. So, whenever we talk about a “new area”, NFTs pop in! Do you think we have any legal work associated with NFTs? You know, majorly IP-related? 

Jason: Um, you know, I have a few clients in the blockchain field, that is, again, software related (blockchain), not you know, specifically with NFTs, but I have been speaking to some potential clients who are interested in taking some of their existing IPs, and turn them into NFTs of some sort. 

Rohit: Could you please tell us what exactly an NFT is? Because when I started to learn about NFTs, it was super-perplexing and extremely difficult to understand.

Jason: So, I think first we have to look back on blockchain. What is blockchain? It’s essentially a piece of ledger. So, in the States when you buy a piece of property, you usually record the deed with the county you bought it in. So this way, if someone wants to buy that piece of property, they can always check with the county deed registry to see who is the proper owner, and buy it from them.

The exact same thing we do with patents, with trademarks – you’re at the USPTO, you’re able to record  any sort of change in ownership. So if any company bought, or if a brand’s bought out from one company, you can always look, and they should register it at the USPTO. You can see, actually, who is the right owner – of that piece of property.

What the blockchain does, is make a decentralized ledger of ownership. And you know- it should not, if it’s done correctly – you can’t change it. So, you know it’s accurate, in a way. What NFTs are, they’re built on top of blockchain technology, and there’s only one of those tokens,  so that’s why they’re called non-fungible tokens (NFTs). This is so that you know, that whoever this person – whoever holds this, is the true owner because the blockchain can help prove that. 

Rohit: Okay, so here’s the confusion. What I believe is that anything gets its value because of the legal sanctity. Because, you know, you can prove your ownership in front of the court, that “Hey, I’m the real owner”. How would you prove the same in case of, say, if you hold an NFT? This aspect goes over my mind. Because there is no legal transaction, and no legal documentation. It’s simply a transaction over blockchain technology. Does it get any legal sanctity? Or does it get its value over something else.

Jason: Well I think that in some way, this whole blockchain technology is going to start  alleviating the need for some kind of legal aspects. Because a lot of that legal aspect is to ensure that someone complies with the legal contract. For blockchain and NFTs, you will be able to remove some of those, because you know, a smart contract will automatically execute when a payment is supposed to be made, and if something happens, they automatically checks it, so you know, you don’t have to rely on a person to do what they said they will do. 

Rohit: Definitely. 

Jason: Because the contact is essentially self-acting, the smart contract. So in place of getting rid of the law, it supplements it. This is done by way of contracts. You know, the one NFT that I did look at, it was of a regular contract – talked about the transfer of ownership of some items, and one of them was an NFT. So they do like to play together, but I like to look at blockchains like I would look at a deed, like you would, for a piece of property. And that shows who owns it, it shows the history of that, and it travels with it. 

Rohit: Well, that sums it up! Let’s talk about the main issue that we face with regards to this subject. After a transaction is completed, do you believe that there might be trademark disputes?

Jason: I believe I made a video on it not too long ago. Just because you have an NFT does not, all of a sudden take away all of the usual legal concerns you can have – like, “Is this NFT infringing on someone’s copyright?” | Is it infringing on someone’s trademark?” 

Rohit: When there is trademark infringement, you’d go and sue the person who’s infringing upon your intellectual property, right? So what action can the victim take to claim damages from an anonymous entity who’s having commercial benefit by selling someone’s trademark as an NFT? 

Jason: Well, you can always try and track down this “anonymous entity”. And, if anyone tries to sell your copyrighted work, they will be taking away rights exclusive to you as the copyright holder, but because of the nature of blockchain technology and NFT, it might be difficult to find out who they are.

So the best option would be to go to the NFT Marketplaces and alert them, and hopefully they’ll get taken down. It’s just like it happens on Amazon these days – or Ebay, or any of those places. Any copyright or trademark-infringing material, when brought to the notice of the correct authorities, they’re usually taken down. So, you know, you might not be able to stop them from trying to sell, but hopefully you’ll be able to stop them in open marketplaces so that it makes it harder for them to do that. 

Rohit: Many people suggest that blockchain is very dangerous – due to the anonymity it offers – and it should be banned. What’s your opinion on that? 

Jason: Would I ban it? No! I wouldn’t ban blockchain technology! If you think about it, everything on blockchain is out in the open. So every transaction, whatever is happening, is out in the open. You might not know who’s doing it, but you can trace the wallet – trace the transaction.

Whereas today, someone can steal the money and you’d have no clue where the money is and who the person is.  In the last year and a half, two years, the federal law enforcement – the FBI – has recovered a lot of stolen Bitcoins. They were able to track exactly where they were going. Now, I don’t know what technology they used to track it.  

Rohit: Right, so this understanding, that everything is “hidden” is definitely not true! Rather it’s the opposite. This technology is actually very open and things could be traced back. 

Jason: Well it might be hard to find someone right away, but it seems like at some point there’s a chance for you to start pinning it down who the person is, you know, somehow. In a regular crime, you might not even have that trail. 

Rohit: Who owns the copyright in an NFT transaction? 

Jason: For example, if you look at the NBA website, I’ve looked at it in the past, and you buy an NFT of LeBron James dunking – it specifically states there that you get no commercial rights, nothing, basically. You can’t license that to anyone else, you can’t do anything with it. You just get to use it as a status symbol – that’s there with a lot of NFTs. You just get to say, “I own this.” 

There’s a lot of things that can be done with it – this technology is still in its infancy. When you buy an NFT, just look at what you bought. They’re not all the same – some might come with more rights than another, but in general, just because you own the NFT doesn’t mean you own the copyrights. 

Rohit: Well, I think we have covered almost everything we could’ve about NFTs-

Jason: We haven’t covered everything, we only covered a small slice of the entire aspect! 

Rohit: (laughs) Yes. Definitely. Do you think there’s anything else in an NFT that you’d like to discuss that we may have missed? 

Jason: I think the main aspect is that you can’t get caught up in the image. There’s a lot more that can come along with it, you know. Like a lot of them are like a membership to a new club – it’s not just an image, I think there’s something called a “Flyfish” or something like that, and it’s like a dinner club! You get exclusive rights to go to a certain restaurant. 

Rohit: I think they’re called utility-based NFTs, am I right?

Jason: Oh I didn’t even know that there was a name for it! (laughs) But yeah, like I said, they could be used in any image, really.

Rohit: Jason I think we should conclude this meeting, because I do not want to take up more of your time. 

Jason: It was a pleasure speaking with you about this!  

Rohit: Thank you so much for your precious time! It was great to have this enriching discussion with you. 

The post Interview: IP Disputes in NFT transactions | Expert: Jason Rosenblum appeared first on LexForti .

Designs are attractive features which can be of different shapes and sizes. Designs enhances the beauty of any entity. However, have you ever thought that the designs also need protection?

It needs protection from being copied either by its competitors or from anyone. It shall be registered under a regulation for the protection.

Under the Indian law, the designs regulation and protection are governed by the Designs Act, 2000 and the Design Rules which was enacted in 2001. It was additionally amended by the Designs (Amendment) Rules, 2008 and Design (Amendment) Rules, 2014.

How designs are protected and why are the protected shall be discussed in the latter part of the article.

DESIGN DEFINITION

Section 2(d) of the Designs Act, 2000 defines design. The section states “only the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any mode or principle of construction or anything which is in substance a mere mechanical device”.

Designs are significant for any product or entity as in it expresses a clear image of a product and glorifies its beauty.

WHAT ARE THE ESSENTIALS OF DESIGN REGISTRATION?

The following are the essential requirements of design which needs to be fulfilled“

• Before the design registration or date of application, the designs should be unused or unpublished previously in any country. Hence, the designs are to be original and new.
• The core of the designs are the characteristics that are showcased through shapes, size, compositions or patterns that are applicable to the entity.
• Artistic work, trademark or property works are excluded from the requirement.
• There must be significant different from your design and the other already registered designs. If the designs are have similar features or looks alike even though with a slight difference will not qualify for the registration.

WHO CAN APPLY?

Any person or the legal representative or the assignee can apply separately or jointly for the design registration. “Person” includes firm, partnership, small entity or body corporate. The application can filed through an agent, in this case a power of attorney would be required to be filed.

NEED

Registering the design helps in protecting the designs from counterfeiting. Counterfeiting means copy or imitate any object with the intention of stealing or destroying the original thing. It protects the objects by complying with the Designs Act, 2000 at the Office of Controller General of Patents, Designs and Trademarks.

The main aim of registration of designs is to provide the owner of the design the exclusive rights to exploit the designs and then use it for commercial purposes. Only filing an application does not guarantee the registration of designs, before allowing it the registrar considers various facts.

PROCESS

Prior to Design Registration Process, it is important to note that the registration of designs can be applied at five different authorities.

• Controller Designs Patent Office in Kolkata
• Patent Office in Delhi
• Patent Office in Mumbai
• Patent Office in Chennai
• Patent Office in Ahmedabad

At any one of the four offices mentioned above, if an application is submitted, the same is redirected to the Kolkata office.

The following is the procedure for the design registration:

• Filing of application- the application should be filed in Form 1 along with documents that are name of the applicant and address of the applicant.
• Nationality of the applicant- in case the applicant is not a natural person, for example, a company, information such as the place of incorporation and the legal status of the entity are to be included and the required applicable fee.
• The class and sub-class of the article under the Locarno Classification embodying the design.
• The name of the entity for the design applies.
• Design representation-
  • If the design’s dimension is two, two copies of the design are to be submitted.
  • If the design’s dimension is three, two copies of the design from the outlook of the front, back, top, bottom, and the two sides must be submitted.
• The different and unique characteristics of the object should be highlighted in the application, that is different from the other existing objects.
• Where the application is made for registration in more than one class, each level of registration should have a different application.
• Statement of disclaimer or novelty needs to be affixed for the mechanical process trademarks, numbers, letters and etc. This must be duly signed and endorsed and dated on each representation by the applicant or the authorized person as a representative of the applicant.
• Following submission of the applicant, the patent office will examine the application and will put up objections, if any. Consequent to clearance of all the objections, a copyright certificate should be granted by the patent office to the design.
• Validity of the design registration- the design registration shall be effective for ten years from the date of registration.
• The term of registration can be expanded by another five years before the expiry of the first ten years by the submission of the application through Form-3 and reimbursing a fee of Rs. 2000.

DOCUMENTS REQUIRED

The following are some of the documents required when registering a design:

1. Applicant’s name and his address.
2. Applicant status i.e., whether natural person or legal person (company).
3. In case of start-ups the applicant should provide a certificate of registration.
4. The description of the article needs to be filed by the applicant along with the identification of the class as per the classification.
5. Minimum of 4 images or drawings of the article from every angle needs to be filed together with the application.
6. Power attorney, if filed by an agent.

ADVANTAGES

• As a design enhances the beauty of any article or entity, it makes it attractive and appealing which also increases its commercial value and marketability of the product. Therefore, whenever a design is protected the owner can sue a person or company who copy the design of the original product.
• The registration of the design protects the image or diagrammatic representation of the product.
• A unique design adds a creative in the product which add value to it and also add an individual character to the product.
• It provides a legal shield and protects the design from being counterfeit which is of paramount importance.

CONCLUSION

From the above stated reasons and facts, it is concluded that registering a design it important not only to protect the design but also gives the owner a right and showcases the owner’s creativity and originality. Therefore, any new design must be registered to avoid any issues thereafter.

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