According to the World Intellectual Property Organisation (WIPO) Intellectual property refers to creations of the mind, such as inventions; literary and artistic works, designs; and symbols, names and images used in commerce and the rights or exclusivity over such literary work is called IPR or Intellectual Property Rights. The Intellectual property is protected by various branches like Trademarks, Patents, Copyrights and Designs and any violations in the form of copying these works leads to what we say infringement.
The individual ingredients of trademark and copyrights can be understood as under:
A trademark is a sign or an emblem that distinguishes the goods or services of one business from those of the other businesses. The main role or purpose of a trademark is to identify the source or origin of products or services. A trademark, indicates source of the goods or acts as an emblem of the starting point of the goods. Therefore, it’s a main sign to identify the goods of a particular company. Nowadays, service marks, are also important as it identifies the provider of the service eg. Travel and Tourism companies have their own Service mark like Kesari travel, Cox and Kings etc are such examples.
The Trademark Act, 1999 by Section 2 (zb) defines “trade mark” as a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours…” The Act also provides a definition of ‘mark’ under Section 2(m) which reckons it to incorporate a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof.
Copyright on the other hand, as explained by the WIPO is a legal term used to describe the rights that initiators or authors have over their literary and artistic works. Works that can be understood as copyright range from books, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps, and technical drawings. Copyright law aims to protect the interests of those who initiate or write content, with the public interest in having the wide-ranging access to that content.
The duration of Copyright for literary, dramatic, musical or artistic works, the term is lifetime of the author plus sixty years. However, in case of cinematograph films, records, photographs, posthumous publication, works of Government and international agencies, the term is sixty years from the date of publication.
Ingredients of a Trademark and it’s Violation
The following quintessence is required for a trademark registration
- The Mark is Capable of Differentiating the Goods and Services of One entity or person from those of others: To put in simple terminology, the use of a mark not capable of differentiating goods of 2 entities or persons cannot qualify for the protection under the Trademark Act 1999. Therefore, the essence of a trademark mainly reckons that a trademark must be unique or idiosyncratic and should be very typical to the product it is associated with. If it lacks uniqueness or distinctiveness, the same can be rejected from being registered as a trademark.
- Graphical representation of the Mark: This phenomenon is defined under Section 2(1) (k) of Trademark Rules, 2007 as representation of a trademark for goods or services represented or capable of being represented in paper form and include representation in digitized form. This includes shape, packaging, or colour combination of the mark. For eg the emblems of various products we use in electronics or electrical items. A well-known brand “Bajaj” is known by the representation and colour combination on all its electrical appliances, where it is embedded.
Threatened Trademark or Squatting
The World Intellectual Property Organisation WIPO defines Trademark Squatting as “the registration or use of a generally well-known foreign trademark that is not registered in the country or is invalid as a result of non-use.” This occurs when a foreign national from another country other than the originating country registers a trademark that has already been registered by the true possessor in the original country. To understand this we take an instance of 2016, where Michael Jordan a world famous basketball player, received a favorable verdict in his favour from the Supreme Court of China. The legal battle was against Qiaodan Sports, a Chinese sportswear company using the Chinese transliteration of Jordan’s name as its trademark. The landmark ruling, prohibited the Fujian-based Qiaodan Sports from using the Chinese translation of Jordan's name, Qiao Dan. The Supreme Court decision by this judgment overturned two previous verdicts in favour of the Chinese firm. However, it allowed the firm to continue using its logo of a silhouetted basketball player which has similarities with the "Jumpman" logo used by Nike to promote its "Air Jordan" line of sports shoes.
Similarly in 2017, the sportswear brand New Balance was also awarded $1.5 million damages by a Chinese court over its famous "N" logo, which was illegally copied by a local sports shoe firm.
Guidelines to prevent Trademark squatting
- Maintain Proper records of documents: The Company concerned should maintain proper record of all its trademark related documents, even in their international offices in case they have to deal with Trademark squatters. This will also help renewal or cancellations of the trademark too, as and when required.
- Early Registration of the Trademark: “First to file” incase of 2 companies trying to register their trademark, the one that has moved first to register the mark is important to give trademark registration. The company that has moved first to register generally gets the rights of the trademark.
- Propose to Use: Under this no prior use of the Mark is mandated for registration hence, this provision allows a brand owner to get its mark protected by registering it in India, despite the owner not using it and merely intends to do so in the in prospect.
Precautions to be taken while Registering a Trademark
Now that we are aware that squatting can happen we have to remember a few things as under while registering a Trademark:
a) The Trademark must be unique, to avoid disputes before or after filing for trademark. There should be no confusion among customers regarding the twin/ similar use of the Trademark. We should also check if the same Trademark is being used by an ally, as was the case of the famous case of the eatery in Mumbai “Bademiya”. From the material placed before the Bombay High Court, the Hon’ble Court took a view that looking at the sales and turnover figures pertaining to the plaintiffs' business, there was no doubt that the plaintiffs' trade name, firm name and trademark "BADEMIYA" alongwith the said logo mark have acquired distinctiveness and have come to be associated with the traders and the members of public exclusively. The defendant by using the trade name and/or firm name and/or trademark which is identical and/or deceptively similar to the plaintiffs trade name and/or firm name and/or trademark "BADEMIYA" had infringed the Trademark. Therefore, the Court ordered that the Defendant change their name and ruled in favour of the Plaintiff company, who were the prior users of the Trademark.
b) Therefore, in the light of the above circumstances, to avoid any confusion it is best to get a search done to make sure that a trademark does not exist with the same name and logo. This will help prevent any dispute in future. Also we should check if there is an actual chance of confusion, as prima facie for a Trademark infringement there should be a confusion among customers regarding the dual use of the trademark. There should be no deception of the customers using the prior mark, as if there is similarity in the packaging and can create confusion among the consumers, the registration will eventually be an infringement and we can file for Infringement proceedings.
Copyright Violations
Copyright Violations or infringement happens when a person intentionally or unintentionally copies or depicts the creative work of another creator, without his prior consent, sanction or permission, or under any contract or license or assignment with the author as covered by the copyright law.
Infringement is of 2 types viz:
1. Primary infringement: Under this there is a direct or real act of copying of the literary work or creative work and portraying it as your own creative work
2. Secondary infringement: Under this are the secondary acts of Piracy of the literary works eg. Pirated movies, or printing pirated books and even includes online piracy etc.
Actions not amounting to infringement
In India the following Acts do not amount to infringement
(1) Fair use: It is understood as, any copying done for a limited and “transformative” purpose, such as to give expert comments, as required or criticize, or caricature of the copyrighted work
(2) Performance by an artist in social gathering, club etc: If the performance is in front of a non-paying audience, then it does not amount to violation
Guidelines to prevent infringement:
If you really intend to remake the work of the existing artists or are going to be using an artists work or creation in any way please make sure to take their permission before hand and display that at some portion in your recreation. Give them credit for the work in a visible area, to avoid it from becoming an infringed copy.
On the other hand if you are the owner or creator of a copyrighted material, ensure that whatever you are planning to copyright has never been created earlier or is already not existing piece of creative art. But we must remember that mere Ideas without any representation, standard methods, and systems are not covered by copyright protection including building things; scientific or technical methods or discoveries. Also, business operations or procedures; mathematical principles, formulas, algorithms; or any other concept, process, or method of operation being used by more than one person or entity is also not infringement. If we follow this above guideline we are sure not to get into any violations and legal problems.
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