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Indian courts have gone beyond the text of the statutes to protect the worldwide reputation that any trade mark or commercial sign can acquire by virtue of its use, promotion or advertisement.
However, from the commercial and legal perspective, it is not practical for a business to seek statutory protection for every single one of its creations.
Thus, during the course of product development, businesses will create brands, shapes of goods, taglines, colour schemes, business names and slogans, but will not register them. Some of these may groupon trading course 2015 uk a shorter lifecycle and may be phased out quickly.
However, those that go on to become money spinners will be protected and used to leverage goodwill. The common law remedy of passing off is specifically provided for in the Trademarks Act in order to protect the interests of rights holders that create a mark, logo or colour scheme which is recognised by the public as indicating the origin of a particular product.
The criteria for establishing and succeeding in a groupon trading course 2015 uk action are as follows:. The rights holder need not prove that anyone has actually been misled or deceived. In an action for passing off which is based on the imitation of get-up, trade dress or other commercial signs, the degree to which the rights holder must show the distinctiveness of the trade dress is high, as it must establish goodwill and reputation and that these are exclusively associated with its business.
The second requirement in such action is that the trade dress used by the imitator be likely to deceive or groupon trading course 2015 uk confusion. As a brand name becomes popular and easily recognised by the trade and the public, it is often copied for different or unrelated goods.
An obvious argument proposed by the traders using the brand groupon trading course 2015 uk for different goods or services in such cases is that since there is no commonality of trade channels and end users, there is no confusion. The protection of a mark for unrelated goods not only is a commercial issue, but also has a social impact.
It encourages fair dealing in the marketplace and prevents unethical and unfair trade practices. How far this protection can — or should — be extended is decided on the facts and circumstances of each case.
Some factors to be considered include:. Case law in this area inclines towards granting broader protection, at least to marks that are well known or recognised by the trade and public. There is no trade groupon trading course 2015 uk between them.
There are no common trade channels. These are factors holding that there would be no danger of deception or confusion. But we must consider the factors which tend to show that there is likelihood of creating deception or confusion. It eventually ruled in favour of Daimler, holding that BENZ, as the name of a car, is well known to everyone. However, this view is not consistent. The court observed that: The proposition that goodwill is local in character and can exist only where trade is carried out in India no longer holds good.
The division bench observed that: It is necessary to note that the goodwill is not limited to a particular country because in the present days, the trade is spread over the world and goods are transported from one country to other groupon trading course 2015 uk and on an extensive scale. The goodwill acquired by the manufacturer is not necessarily limited to the country where the goods are freely available because the goods though not available are widely advertised in newspapers, periodicals, magazines and in other media.
The result is that though the goods are not available in the country, the goods and the mark under which they are sold acquires a wide reputation. The advancement of technology and internet penetration in recent years has helped to spread the goodwill and reputation of products in countries where they are not readily available. In other words, the dissemination of information is no longer constrained by territorial boundaries.
Therefore, a party would not be advised to rely on the defence that a passing-off action is not maintainable as the product is not available and the owner has no operations in India. The courts have also been liberal in upholding the rights of groupon trading course 2015 uk owners whose products are not freely available in the country, provided that they can substantiate their goodwill and that their reputation has spilled over into India.
The US company initiated an action against the defendant, which was using an identical mark in relation to identical services. The defendant contended that Groupon, Inc had no operations in India, and that it was the first user of the mark in the country. At the same time, it is a question of fact in each case as to how online documents are sufficient to show the global character and reputation of a trade mark.
As international businesses grow and proximity between markets increases, this concept will likely become weaker over time until the whole world is treated as a single market. Trade dress or get-up is another form of commercial sign which serves as an important source identifier. Companies seldom seek statutory protection for labels or trade dress.
However, common law rights accrue by virtue of use. If the illiterate, unwary and gullible customer gets confused as to the source and origin of the goods which he has been using for longer period by way of getting the goods in a container having particular shape, colour combination and getup, it amounts to passing off.
The Indian courts have gone beyond the text of the statutes to protect the worldwide reputation that any trade groupon trading course 2015 uk or commercial sign can acquire by virtue of its use, promotion or advertisement.
This is in line with the new interconnected world in which we all live. This article was first published in WTR. Domain Names Geographical Indications. Reacting to the new interconnected world Rouse Magazine Editor.