Trade Mark 3

Well known Marks
Well known marks – the basic rationale

As explained earlier, there are some trade marks which have been
so successfully promoted by their proprietors that they have
become icons in their own right, and people buy goods bearing
these trade marks not really because of the origin or quality of
these goods, but because of the trade marks themselves and the
image and lifestyle they symbolise.
Many countries, in recognition of the tremendous investments
made by these proprietors in building up the reputation and value
of their trade marks, now grant to these proprietors an 'anti-
dilution' right which protects their mark against unauthorised use
even where such use does not result in confusion.
Well known Marks
In the U.K., the anti-dilution law introduced in 1994 is for 'marks
with a reputation’, and in the U.S., it was introduced in 1995 for
'famous' marks.
Under TRIPs, it is now obligatory upon all WTO members to

provide protection to Well known trade marks, and consequently,
India now provides for such protection.
However, we are interested in understanding the scope of such

protection.
Well known Marks
What are well-known trade marks?
Section 2(zg) ―
“well known trade mark”, in relation to any goods or services,
means a mark which has become so to the substantial segment of
the public which uses such goods or receives such services that the
use of such mark in relation to other goods or services would be
likely to be taken as indicating a connection in the course of trade
or rendering of services between those goods or services and a
person using the mark in relation to the first-mentioned goods or
services.
Thus, ‘niche’ fame suffices.

Well known Marks
(6) The Registrar shall, while determining whether a trade mark is
a well-known trade mark, take into account any fact which he
considers relevant for determining a trade mark as a well-known
trade mark including—
(i) the knowledge or recognition of that trade mark in the
relevant section of the public including knowledge in India
obtained as a result of promotion of the trade mark;
(ii) the duration, extent and geographical area of any use of that
trade mark;
Well known Marks
(iii) the duration, extent and geographical area of any promotion
of the trade mark, including advertising or publicity and
presentation, at fairs or exhibition of the goods or services to
which the trade mark applies;
(iv) the duration and geographical area of any registration of or
any application for registration of that trade mark under this Act
to the extent that they reflect the use or recognition of the trade
mark;
(v) the record of successful enforcement of the rights in that trade
mark, in particular the extent to which the trade mark has been
recognised as a well-known trade mark by any court or Registrar
under that record.
Well known Marks
(7) The Registrar shall, while determining as to whether a trade
mark is known or recognised in a relevant section of the public for
the purposes of sub-section (6), take into account—
(i) the number of actual or potential consumers of the goods or
services;
(ii) the number of persons involved in the channels of distribution
of the goods or services;
(iii) the business circles dealing with the goods or services, to
which that trade mark applies.
Well known Marks
Rolex SA v. Alex Jewellery Pvt. Ltd. 2009 (41)PTC 284 (Del)
Rolex sued an Indian jewelry company for using the name/mark

ROLEX on the boxes and packaging of artificial jewelry as well as
for the domain rolexjewelleryhouse.com.
It was the case of the plaintiff that ROLEX is a well known trade
mark.
Well known Marks
Court held:
“In my view the segment of the public which uses the watches of
the category/price range as the watches of the plaintiff, ROLEX is a
well known trademark. The said segment of the public if comes
across jewellery/artificial jewellery also bearing the trademark
ROLEX is likely to believe that the said jewellery has a connection
to the plaintiff…
Yet another provision in the Act, though for the guidance of the
Registrar but in relation to well known trademarks is to be found in
Section 11(6) of the Act.
Well known Marks
Upon testing the trademark of the plaintiff on the touchstone of
the ingredients of the said provision also, I find the said trademark
of the plaintiff to be satisfying the test of a well known trademark.
The documents filed by the plaintiff i.e., the advertising done in
the media in India since 1947 and particularly in years immediately
preceding the suit, registrations obtained show that relevant
section of the public in India had knowledge of the trademark
ROLEX in relation to the watches.
The pleadings of the plaintiff and which are not contested also
show that the plaintiff for the last nearly one century has been
using the said trademark spread over nearly the entire
developed/developing world.
Well known Marks
The advertisements of the plaintiff had appeared in the magazines
in this country even when there were import restrictions. The
plaintiff has filed documents to show registration of the trademark
in a large number of countries and also to show successful
enforcement of its rights with respect to the said trademark.
The Business Week/Inter Brand Annual Ranking of 2008 of 100 Top

Global Brands ranks ROLEX at No. 71. To fall in the list, the criteria
is to have brand value in excess of USD one billion, derives at least
a third of its earning outside the home country and have publicly
available marketing and financial data.
Well known Marks
Once the aforesaid criterions are met, there is no difficulty in
holding that the plaintiff's registered trademark even in relation to
watches has a reputation in India.
Well known Marks
(9) The Registrar shall not require as a condition, for determining
whether a trade mark is a well-known trade mark, any of the
following, namely:—
(i) that the trade mark has been used in India;
(ii) that the trade mark has been registered;
(iii) that the application for registration of the trade mark has been
filed in India;
Well known Marks
(iv) that the trade mark—
(a) is well-known in; or
(b) has been registered in; or
(c) in respect of which an application for registration has been filed
in,
any jurisdiction other than India, or
(v) that the trade mark is well-known to the public at large in India.
Well known Marks
The website ipindiaonline.gov.in has compiled a list of the marks
which have so far been adjudged as being “well-known” marks in
India.
The list can be accessed at:

https://ipindiaonline.gov.in/tmrpublicsearch/wellknownmarks.asp
x
Well known Marks
What happens when there is a well known trade mark?
(2) A trade mark which—
(a) is identical with or similar to an earlier trade mark; and
(b) is to be registered for goods or services which are not similar to
those for which the earlier trade mark is registered in the name of
a different proprietor,
shall not be registered if or to the extent the earlier trade mark is a
well-known trade mark in India and the use of the later mark
without due cause would take unfair advantage of or be
detrimental to the distinctive character or repute of the earlier
trade mark.
Well known Marks
(10) While considering an application for registration of a trade
mark and opposition filed in respect thereof, the Registrar shall—
(i) protect a well-known trade mark against the identical or similar
trade marks;
(ii) take into consideration the bad faith involved either of the
applicant or the opponent affecting the right relating to the trade
mark.
Well known Marks
So let’s now focus on the language of subsection 2:
“the use of the later mark without due cause would take unfair
advantage of or be detrimental to the distinctive character or
repute of the earlier trade mark.”
It has two parts:

i. take unfair advantage of or
ii. be detrimental to the distinctive character or repute of the
earlier trade mark
Well known Marks
Let’s look at the second part first:
be detrimental to the distinctive character or repute of the earlier

trade mark
What does this mean?

Clearly, there is no confusion – so the type of ‘damages’ we saw
earlier to the proprietor are not present here. This ‘detriment’ is
different from the damage to the mark earlier. How?
Well known Marks
In the context of well-known trade marks where there is no
confusion in the minds of the consumer, this detriment is known
as ‘dilution’. Dilution is of two types:
i. Blurring
ii. Tarnishment
Let’s look at the meaning of these.

Well known Marks
Dilution by blurring
Dilution by blurring reduces or erodes the strong capacity of the
special well-known trade mark to exclusively identify the goods/
services of its proprietor.
For example, if use of BMW mark on bags and shoes is allowed,
the distinctiveness of the BMW mark would arguably be eroded
over time, and eventually the public seeing or hearing the mark
BMW would no longer immediately and exclusively think of the
BMW cars.
Well known Marks
But unlike in passing off and infringement of registered trade
mark, dilution by blurring does not require existence of
misrepresentation or confusion.
Well known Marks
Dilution by 'tarnishing'
Dilution by 'tarnishing' degrades the reputation or the positive
image of the special well-known trade mark.
An example of dilution by tarnishing is the Dutch case where the
manufacturer of the well-known CLAERYN gin succeeded in
stopping the use of phonetically identical mark KLAREIN on
detergent.
Well known Marks
The reason, it has been observed, is that 'no one likes to be
reminded of a detergent when drinking their favourite tipple'.
Another example is where the special well-known trade mark is
used on goods of an obscene nature.
Well known Marks
Taking unfair advantage of the distinctive character of the special
well-known trade mark can also occur without consumer
confusion.
The difference between the 'taking unfair advantage' limb and the
'dilution' limb is as follows.
In dilution, the value of the special well known trade mark is
diminished, that is, there is a negative impact on its goodwill.
In the case where a third party takes unfair advantage of the
distinctive character of the special well-known trade mark, he is
seeking to increase his sales by 'free riding' or feeding on the
goodwill of the special well-known trade mark.
Well known Marks
In other words, the complaint here is not that this third party has
caused harm to the goodwill of the special well-known trade mark
but rather, that he has unfairly derived a positive benefit from the
goodwill.
When determining whether there is 'free riding', these factors may
be taken into consideration:
• the third party's intention behind the choice of the mark in
question (whether it was deliberately chosen to establish an
association with the special well known trade mark);
• the impact on the economic behaviour of the consumer
(whether the third party's goods/services sell because of the
reputation of the special well-known trade mark).
Well known Marks
L’Oreal S.A. v Bellure N.V.
L’Oreal manufactured perfumes including TRESOR, MIRACLE,
ANAIS ANAIS and NOA.
Defendants sold perfumes that were not in competition with
(different price and market sectors)but were intended to smell like
and whose packaging resembled L’Oreal’s perfumes.
They also produced comparison tables showing the word marks for
L’Oreal’s perfumes against their own “smell-alike” products but did
not suggest that their perfumes were anything other than cheap
imitations of the original.
Well known Marks
As regards the use of packaging and bottles similar to those of the
fragrances marketed by L’Oréal, the Court ruled that the owner of
a well-known trade mark may prohibit a third party from using a
sign similar to that trade mark where that third party seeks to ride
on the coat-tails of the mark in order to benefit from the power of
attraction, the reputation and the prestige of that mark and to
exploit, without paying any financial compensation, the marketing
effort expended by the proprietor of the mark in order to create
and maintain the mark’s image.
By acting in that manner, the third party takes unfair advantage
of the trade mark, even where there is no likelihood of confusion
or detriment to the distinctive character or the repute of the
mark.
Well known Marks
In the present case, Malaika and Starion obtained a commercial
advantage from the fact that, in marketing their ‘downmarket’
imitations, they use packaging and bottles similar to those used by
L’Oréal for its fine fragrances.
Moreover, the similarity was created intentionally in order to
create an association in the mind of the public with the aim of
facilitating the marketing of the products.
Well known Marks
Mattel, Inc. v. MCA Records
Toy manufacturer brought action against music companies for

trademark infringement and dilution associated with song that
lampooned manufacturer’s ‘‘Barbie’’ trademark associated with
doll.
Well known Marks
Well known Marks
Decision
“Barbie was born in Germany in the 1950s as an adult collector’s
item. Over the years, Mattel transformed her from a doll that
resembled a ‘‘German street walker,’’ as she originally appeared,
into a glamorous, long-legged blonde. Barbie has been labeled
both the ideal American woman and a bimbo. She has survived
attacks both psychic (from feminists critical of her fictitious figure)
and physical (more than 500 professional makeovers).
She remains a symbol of American girlhood, a public figure who
graces the aisles of toy stores throughout the country and beyond.
With Barbie, Mattel created not just a toy but a cultural icon.
Well known Marks
With fame often comes unwanted attention. Aqua is a Danish
band that has, as yet, only dreamed of attaining Barbie-like status.
In 1997, Aqua produced the song Barbie Girl on the album
Aquarium. In the song, one bandmember impersonates Barbie,
singing in a high-pitched, doll-like voice; another bandmember,
calling himself Ken, entices Barbie to ‘‘go party.’’
Barbie Girl singles sold well and, to Mattel’s dismay, the song made
it onto Top 40 music charts.
Well known Marks
Mattel brought this lawsuit against the music companies who
produced, marketed and sold Barbie Girl: MCA Records, Inc.
The district court’s ruled that Barbie Girl is a parody of Barbie and
a nominative fair use; that MCA’s use of the term Barbie is not
likely to confuse consumers as to Mattel’s affiliation with Barbie
Girl or dilute the Barbie mark; and that Mattel cannot assert an
unfair competition claim.”
Our focus would be on the dilution claim.

Well known Marks
On dilution
“Mattel argues that MCA’s song diminishes the mark’s capacity to
identify and distinguish Mattel products, and tarnishes the mark
because the song is inappropriate for young girls…
MCA’s use of the mark is dilutive. MCA does not dispute that,
while a reference to Barbie would previously have brought to mind
only Mattel’s doll, after the song’s popular success, some
consumers hearing Barbie’s name will think of both the doll and
the song, or perhaps of the song only. This is a classic blurring
injury and is in no way diminished by the fact that the song itself
refers back to Barbie the doll…
Well known Marks
“We consider next the applicability of the… exemption for
noncommercial use.”
The court then goes on to notice the free speech concerns in

allowing trade mark dilution, and continued with the legislative
history of the act prohibiting trade mark dilution…
At the time of introducing the bill, it was noted that “the proposed
law ‘‘will not prohibit or threaten noncommercial expression, such
as parody, satire, editorial and other forms of expression that are
not a part of a commercial transaction.’’
Well known Marks
It was also noted that the ‘non commercial use’ exemption “is
consistent with existing case law[, which] recognize[s] that the use
of marks in certain forms of artistic and expressive speech is
protected by the First Amendment’’
The court then noted that “Although the boundary between

commercial and noncommercial speech has yet to be clearly
delineated, the ‘core notion of commercial speech’ is that it ‘does
no more.”
Well known Marks
The court then noted Hoffman v. Capital Cities
In Hoffman, a magazine published an article featuring digitally

altered images from famous films. Computer artists modified shots
of Dustin Hoffman, Cary Grant, Marilyn Monroe and others to put
the actors in famous designers’ spring fashions; a still of Hoffman
from the movie ‘‘Tootsie’’ was altered so that he appeared to be
wearing a Richard Tyler evening gown and Ralph Lauren heels.
Hoffman, who had not given permission, sued.
Well known Marks
The article featuring the altered image clearly served a commercial
purpose: ‘‘to draw attention to the for-profit magazine in which it
appear[ed]’’ and to sell more copies.
Nevertheless, the court held that the article was fully protected
under the First Amendment because it included protected
expression: ‘‘humor’’ and ‘‘visual and verbal editorial comment on
classic films and famous actors.’’
Because its commercial purpose was ‘‘inextricably entwined with
[these] expressive elements,’’ the article and accompanying
photographs enjoyed full First Amendment protection.
Well known Marks
Held:
Barbie Girl is not purely commercial speech, and is therefore fully
protected. To be sure, MCA used Barbie’s name to sell copies of
the song.
However, as we’ve already observed, the song also lampoons the
Barbie image and comments humorously on the cultural values
Aqua claims she represents.
Use of the Barbie mark in the song Barbie Girl therefore falls
within the noncommercial use exemption.
Procedure for Registration
Section 3 Appointment of Registrar and other officers.
(1) The Central Government may…appoint a person to be known
as the Controller-General of Patents, Designs and Trade Marks,
who shall be the Registrar of Trade Marks for the purposes of
this Act.
Section 5. Trade Marks Registry and offices thereof
(1) For the purposes of this Act, there shall be a trade marks
registry[].
(2) The head office of the Trade Marks Registry shall be at such
place as the Central Government may specify, and for the purpose
of facilitating the registration of trade marks, there may be
established at such places as the Central Government may think fit
branch offices of the Trade Marks Registry.
The Head office is in Mumbai and branch offices in New Delhi,
Kolkata, Chennai and Ahmedabad.
Refer to the link below for information on jurisdiction of each
office.
http://www.ipindia.nic.in/locations-and-jurisdiction.htm
Section 6 The Register of Trade Marks
(1) For the purposes of this Act, a record called the Register of
Trade Marks shall be kept at the head office of the Trade Marks
Registry, wherein shall be entered all registered trade marks with
the names, addresses and description of the proprietors,
notifications of assignment and transmissions, the names,
addresses and descriptions of registered users, conditions,
limitations and such other matter relating to registered trade
marks as may be prescribed.
Section 7 Classification of goods and services
(1) The Registrar shall classify goods and services, as far as may be,
in accordance with the International classification of goods and
services for the purposes of registration of trade marks.
(2) Any question arising as to the class within which any goods or
services falls shall be determined by the Registrar whose decision
shall be final.
While India is not a contracting party to Nice Agreement – the link
available on ipindia website takes us to the following link
http://euipo.europa.eu/ec2/ - which essentially is an easy
generator of classes as per the internationally recognized nice
classification.
The Nice Classification (NCL), established by the Nice Agreement
(1957), is an international classification of goods and services
applied for the registration of marks.
The eleventh edition of the NCL came into force on January 1,
2017.
A brief and official flowchart for the procedure of Registration may
be found here:
http://www.ipindia.nic.in/workflow-chart.htm
Let’s also look at some important parts of the provisions.

Section 18 Application for registration
(1) Any person claiming to be the proprietor of a trade mark –
used or proposed to be used by him,
shall apply in writing to the Registrar for the registration of his
trade mark.
(2) A single application may be made for registration of
a trade mark
for different classes of goods and services and
fee payable therefor shall be in respect of each such class of goods
or services.
All the information on forms and fee is available at -

http://www.ipindia.nic.in/form-and-fees-tm.htm
Please also note that now e-filing has been made available which is
a latest development.
https://ipindiaonline.gov.in/trademarkefiling/user/frmLoginNew.a
spx
Additionally – the website also allows an online public search of all

the trademarks.
http://ipindiaonline.gov.in/tmrpublicsearch/frmmain.aspx
(3) Every application under sub-section (1) shall be filed in the
office of the Trade Marks Registry within whose territorial limits
the principal place of business in India of the applicant is situate:
Provided that where the applicant does not carry on business in
India, the application shall be filed in the office of the Trade Marks
Registry within whose territorial limits the place mentioned in the
address for service in India as disclosed in the application, is
situate.
(4) Subject to the provisions of this Act, the Registrar may refuse
the application or may accept it absolutely or subject to such
amendments, modifications, conditions or limitations, if any, as he
may think fit.
(5) In the case of a refusal or conditional acceptance of an
application, the Registrar shall record in writing the grounds for
such refusal or conditional acceptance and the materials used by
him in arriving at his decision.
Section 20 Advertisement of application
(1) When an application for registration of a trade mark has been
accepted, the Registrar shall cause the application to be
advertised:
The journal for publication is available also at

http://www.ipindia.nic.in/journal-tm.htm
Section 21 Opposition to registration
(1) Any person may, within four months from the date of the
advertisement of an application for registration,
give notice in writing and pay the fee,
to the Registrar, of opposition to the registration.
(2) The Registrar shall
serve a copy of the notice on the applicant for registration and,
within two months from the receipt by the applicant of such copy
of the notice of opposition,
the applicant shall send to the Registrar a counterstatement
of the grounds on which he relies for his application,
and if he does not do so he shall be deemed to have abandoned
his application.
(3) If the applicant sends such counter-statement, the Registrar
shall serve a copy thereof on the person giving notice of
opposition.
(4) Any evidence upon which the opponent and the applicant may
rely shall be submitted to the Registrar,
and the Registrar shall give an opportunity to them to be heard, if
they so desire.
(5) The Registrar shall,
after hearing the parties, if so required, and considering the
evidence,
decide whether the registration is to be permitted.
Section 22 Correction and amendment
The Registrar may,
at any time,
whether before or after acceptance of an application for
registration,
permit the correction of any error in
or in connection with the application or
permit an amendment of the application:
Section 23 Registration
(1) Subject to the provisions of section 19, when an application for
registration of a trade mark has been accepted
and either—
(a) the application has not been opposed and the time for notice
of opposition has expired; or
(b) the application has been opposed and the opposition has been
decided in favour of the applicant,
the Registrar shall,
register the said trade mark within eighteen months of the filing of
the application
and the trade mark when registered shall be registered as of the
date of the making of the said application
and that date shall, subject to the provisions of section 154
(Priority), be deemed to be the date of registration.
(2) On the registration of a trade mark, the Registrar shall issue to
the applicant a certificate of registration, sealed with the seal of
the Trade Marks Registry.
Section 25 Duration, renewal, removal and restoration of
registration
(1) The registration of a trade mark,
after the commencement of this Act,
shall be for a period of ten years,
but may be renewed from time to time in accordance with the
provisions of this section.
(2) The Registrar shall,
on application made by the registered proprietor
renew the registration of the trade mark for a period of ten years
from the date of expiration of the original registration/renewal
date.
Procedure for Registration – Madrid Protocol
What is the Madrid Protocol?
The Protocol Relating to the Madrid Agreement Concerning the

International Registration of Marks (Madrid Protocol)
is an international treaty
that allows a trademark owner to seek registration in any of the
countries that have joined the Madrid Protocol by filing a single
application, called an "international application."
The International Bureau of the World Intellectual Property
Organization, in Geneva, Switzerland administers the international
registration system.
The resulting "international registration" serves as a means for

seeking protection in member countries,
each of which apply their own rules and laws to determine
whether or not the mark may be protected in their jurisdiction.
Neither the Madrid Protocol nor the Madrid Agreement provide
for registration of an "internationally effective" trademark.
The Madrid System is a one stop solution for registering and
managing marks worldwide.
File one application,
in one language,
and pay one set of fees
to protect your mark in the territories of up to 98 members.
Manage your portfolio of marks through one centralized system.
India became the Madrid Protocol’s 90th member when it joined
the System in July 2013.
How does the system work?

Let’s see.
Stage 1 – Application through your National or Regional IP Office
(Office of origin)
If the applicant is an Indian party – the country of origin would be
India.
Before you can file an international application, you need to have

already registered, or have filed an application, in your “home” IP
office.
The registration or application is known as the basic mark.
You then need to submit your international application through
this same IP Office, which will certify and forward it to WIPO.
Stage 2 – Formal examination by WIPO

WIPO only conducts a formal examination of your international
application.
Once approved, your mark is recorded in the International Register
and published in the WIPO Gazette of International Marks.
WIPO will then send you a certificate of your international
registration and notify the IP Offices in all the territories where you
wish to have your mark protected.
It is important to note that the scope of protection of an
international registration is not known at this stage in the
process.
It is only determined after substantive examination and decision by
the IP Offices in the territories in which you seek protection, as
outlined in Stage 3.
Stage 3 – Substantive examination by National or Regional IP
Offices (Office of the designated Contracting Party)
The IP Offices of the territories where you want to protect your
mark will make a decision within the applicable time limit (12 or 18
months) in accordance with their legislation.
WIPO will record the decisions of the IP Offices in the International

Register and then notify you.
If an IP Office refuses to protect your mark, either totally or
partially, this decision will not affect the decisions of other IP
Offices.
You can contest a refusal decision directly before the IP Office
concerned in accordance with its legislation.
If an IP Office accepts to protect your mark, it will issue a
statement of grant of protection.
The international registration of your mark is valid for 10 years.
You can renew the registration at the end of each 10-year period
directly with WIPO with effect in the designated Contracting
Parties concerned.
At the same, India may be a ‘Designated Contracting Party’. What

does this mean?
This means that an applicant in another jurisdiction (say USA)
While making an international application under the Madrid
Protocol
Has designated India as a party where he would like to seek
protection
In this case – WIPO would notify the Indian registry

And the Indian registry would then examine this application as per
the Indian law and procedure
Effects of Registration and infringement
Now we will see:
• rights of the registered proprietor of a trade mark
• infringement
• limitations and defenses
• Remedies, and
• criminal offences.
There is a great deal of similarity between the relative grounds of
refusal of registration and the acts that amount to infringement.
Many of the principles and cases on the relative grounds,

discussed in full detail earlier, have relevance for infringement
also.
Thus, the same will not be repeated here and we will instead focus
on other aspects not included earlier.
Section 27 No action for infringement of unregistered trade mark
(1) No person shall be entitled to institute any proceeding to
prevent, or to recover damages for, the infringement of an
unregistered trade mark.
(2) Nothing in this Act shall be deemed to affect rights of action
against any person for passing off goods or services as the
goods of another person or as services provided by another
person, or the remedies in respect thereof.
Section 28 Rights conferred by registration
The registration of a trade mark shall, if valid, give to the
registered proprietor of the trade mark the exclusive right to the
use of the trade mark in relation to the goods or services in
respect of which the trade mark is registered and to obtain relief
in respect of infringement of the trade mark.
Section 29 Infringement of registered trade marks
(1) A registered trade mark is infringed by a person who, not being
a registered proprietor or a person using by way of permitted use,
uses in the course of trade, a mark which is identical with, or
deceptively similar to, the trade mark 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 the mark likely to be taken as
being used as a trade mark.
There are 3 important aspects of this section:
• uses in the course of trade
• deceptively similar
• use as a trade mark
Section 2(1)(h) ― deceptively similar — A mark shall be deemed to

be deceptively similar to another mark if it so nearly resembles
that other mark as to be likely to deceive or cause confusion
As noted earlier, deceptive similarity is judged in the same way,
by applying the 3 stage test.
Use in course of trade
Some help is derived from section 29(6), section 29(7) and section
29(9).
Section 29(6) provides:
For the purposes of this section, a person uses a registered mark,
if, in particular, he—
(a) affixes it to goods or the packaging thereof;
(b) offers or exposes goods for sale, puts them on the market, or
stocks them for those purposes under the registered trade
mark, or offers or supplies services under the registered trade
mark;
(c) imports or exports goods under the mark; or
(d) uses the registered trade mark on business papers or in
advertising.
Theoretically, the list is not exhaustive and other forms of use may
be caught.
(7) A registered trade mark is infringed by a person who applies
such registered trade mark to a material intended to be used for
labeling or packaging goods, as a business paper, or for advertising
goods or services.
(9) Where the distinctive elements of a registered trade mark

consist of or include words, the trade mark may be infringed by
the spoken use of those words as well as by their visual
representation.
Use as a trade mark
The question here is whether it is required that the offending sign
is being used in a trade mark sense, as an indicator of origin.
Mattel v Mca Records, Inc.
A trademark is a word, phrase or symbol that is used to identify a
manufacturer or sponsor of a good or the provider of a service. A
trademark ‘‘inform[s] people that trademarked products come
from the same source.’’
‘‘[t]rademark rights do not entitle the owner to quash an
unauthorized use of the mark by another who is communicating
ideas or expressing points of view.’’
There is no doubt that MCA uses Mattel’s mark: Barbie is one half
of Barbie Girl. But Barbie Girl is the title of a song about Barbie and
Ken, a reference that—at least today—can only be to Mattel’s
famous couple. We expect a title to describe the underlying work,
not to identify the producer, and Barbie Girl does just that.
Thus, there is no trademark infringement.

Section 29(2) is similar to Section 11(1)
Section 29(3) is similar to Section 11(2).
(8) A registered trade mark is infringed by any advertising of that
trade mark if such advertising—
(a) takes unfair advantage of and is contrary to honest practices in
industrial or commercial matters; or
(b) is detrimental to its distinctive character; or
(c) is against the reputation of the trade mark.
Limitations and Defences
Section 2(l) – limitations (with its grammatical variations) means
any limitation of the exclusive right to the use of a trade mark
given by the registration of a person as proprietor thereof,
including limitations of that right as to mode or area of use within
India or outside India;
Section 18(4) Subject to the provisions of this Act, the Registrar
may refuse the application or may accept it absolutely or subject
to such amendments, modifications, conditions or limitations, if
any, as he may think fit.
The law provides for several limitations and defences against an
accusation of infringement.
Section 30(2) A registered trade mark is not infringed where—
(a) the use in relation to goods or services indicates the kind,
quality, quantity, intended purpose, value, geographical origin, the
time of production of goods or other characteristics of goods;
(b) a trade mark is registered subject to any conditions or
limitations, the use of the trade mark in any manner in relation to
goods [] to which, having regard to those conditions or limitations,
the registration does not extend;
Section 35 – Saving for use of name, address or description of
goods or services
Nothing in this Act shall entitle the proprietor or a registered user
of a registered trade mark to interfere with any bona fide use by a
person of his own name or that of his place of business, or of the
name, or of the name of the place of business, of any of his
predecessors in business, or the use by any person of any bona
fide description of the character or quality of his goods or services.
Parallel Imports
Samsung Electronics Company Ltd. v. Kapil Wadhwa & Ors. (2012)
The 1st plaintiff in the case, was Samsung Electronics Company
Limited, Korea and the 2nd plaintiff was its Indian subsidiary and
exclusive licensee in India. The 1st plaintiff produced records to
show 7 registrations for the mark “SAMSUNG” across classes 7, 9
and 11.
The defendant was admittedly an erstwhile authorized dealer of

Samsung products.
The cause of action arose due to the sales of imported Samsung
printers by the defendant.
These “grey market” goods, though genuine Samsung printers,
were as per the plaintiff, not sold without due adherence to
various statutory norms including affixing a MRP, not being given
with a manufacturers guarantee, and most interestingly, “not
earmarked to be sold in the Indian market”.
A further grievance was that the defendant was operating a
website whereby the imported Samsung printers were offered at a
price much lower than that of the plaintiffs.
The Court held that section 30(3) recognises only national
exhaustion in India.
Section 30(3) reads – Where the goods bearing a registered trade
mark are lawfully acquired by a person, the sale of the goods in
the market or otherwise dealing in those goods by that person[] is
not infringement of a trade mark by reason only of—
(a) the registered trade mark having been assigned by the
registered proprietor to some other person, after the
acquisition of those goods; []
The section is interpreted to mean that once goods are acquired
by a person from the registered proprietor within the same
market, the registered proprietor cannot turn around and state
that there in an infringement of his trademark on the count that
there is change of ownership by way of an assignment between
the registered proprietor and some other person and seek
prohibition on the dealings of the goods.
This cannot subsume in favour of a person acquiring goods from a
foreign market.
The Court unequivocally held that section 30(3) does not recognise
any concept of international exhaustion, and the section operates
only within the market where the registration of the mark extends.
Thus in India, parallel importation has not yet been recognized as a
defence and exhaustion is only national.
However, as this is slightly controversial, this may perhaps change

in future.
Section 31 – Registration to be prima facie evidence of validity—
(1) In all legal proceedings relating to a trade mark registered
under this Act (including applications under section 57), the
original registration of the trade mark and of all subsequent
assignments and transmissions of the trade mark shall be prima
facie evidence of the validity thereof.
Section 134 Suit for infringement, etc., to be instituted before
District Court.—
(1) No suit—
(a) for the infringement of a registered trade mark or
(c) for passing off arising out,
shall be instituted in any court inferior to a District Court having
jurisdiction to try the suit.
Remedies in case of Trade mark infringement
Broadly they are of two types:
i. Civil
ii. Criminal
Civil remedies, as seen under section 135, consists in, inter alia:
• damages
• injunction
Section 135 Relief in suits for infringement or for passing off
(1) The relief which a court may grant in any suit for infringement
or for passing off referred to in section 134 includes injunction
(subject to such terms, if any, as the court thinks fit) and at the
option of the plaintiff, either damages or an account of profits,
together with or without any order for the delivery-up of the
infringing labels and marks for destruction or erasure.
(2) The order of injunction under sub-section (1) may include an ex
parte injunction or any interlocutory order for any of the following
matters, namely:—
(a) for discovery of documents;
(b) preserving of infringing goods, documents or other evidence
which are related to the subject-matter of the suit;
(c) restraining the defendant from disposing of or dealing with his
assets.
(b) where in a suit for infringement the defendant satisfies the
court—
(i) that at the time he commenced to use the trade mark
complained of in the suit, he was unaware and had no reasonable
ground for believing that the trade mark of the plaintiff was on the
register and
(ii) that when he became aware of the existence and nature of the
plaintiff’s right in the trade mark, he forthwith ceased to use the
trade mark in relation to goods or services in respect of which it
was registered; or
Temporary / interim / interlocutory injunction
Permanent injunction
What is the difference?
When should temporary injunction be issued?
American Cyanamid Co V Ethicon Ltd [1975] UKHL 1

• Whether there is a serious question to be tried.
• What would be the balance of convenience of each party
should the order be granted (in other words, where does that
balance lie?)
• In addition, “If damages in the measure recoverable would be
[an] adequate remedy and the defendant would be in a
financial position to pay them, no interim injunction should
normally be granted, however strong the plaintiff’s claim
appeared to be at that stage.”
Anton Piller orders and John Doe orders
Anton Piller orders made by the court in a civil action allow a
plaintiff alleging the violation of its IP to enter the respondent’s
premises to search and seize evidence, if any, without prior
warning. Such orders are effective in alleged trade mark, copyright
or patent infringement.
Various common law jurisdictions have chosen to adopt the same
as an effective methodology for establishment of evidence of
infringement of IP by the seizing of the goods in question.
Indian courts have recognized the same for more than 20 years
with the successful order being in the case of National Garments,
Kaloor, Cochin Vs. National Apparels, Ernakulam, Cochin, where
the order was passed in an action of passing off in regard to
trademarks of the plaintiff.
As laid down by the courts, the basic principles that should be
satisfied in order for the court to issue Anton Piller orders are
(a) There is an extremely strong prima facie case against the
respondent;
(b) The damage, potential or actual, must be very serious for the
applicant; and
(c) There must be clear evidence that the respondents have in
their possession relevant documents or things and that there is a
real possibility that they may destroy such material before an
inter-party application can be made.
John Doe orders
However, traditionally, the Anton Piller orders were restricted to
investigating premises of known persons and did not address the
wrongs committed by unknown and unidentified infringers.
Across all jurisdictions, practitioners and intellectual property right
holders have been faced with the daunting task of not letting the
infringer go scot free. As a result to prevent infringement of
intellectual property rights against unidentified (or "John Doe")
defendants similar orders were passed, often referred to as
"rolling" Anton Piller orders.
The name “John Doe” is used to identify unknown/nameless
defendants/infringers, who have allegedly committed some wrong,
but whose identity is unknown to the plaintiff.
To avoid delay and render justice, the court names the defendant
as “John Doe”, until such time the defendant is identified.
The orders passed by court in such cases are thus popularly known
as “John Doe orders”. Once the defendant(s) are identified, “John
Doe” is replaced with the name of the concerned defendant, who
defends the matter as in any other intellectual property
infringement case.
In India, in the trade mark context, the Delhi High Court in
Luxottixa Group Limited vs. Ashok Kumar issued John Doe order
restraining unidentified persons from selling counterfeit optical
products in India.
Mareva Injunction
Sometimes, in addition to the above, a mareva injunction may also
be issued.
The Mareva Injunction is a court order which freezes assets so that
a defendant to an action cannot dissipate their assets from beyond
the jurisdiction of a court so as to frustrate a judgment.
Criminal remedy
Section 103 Penalty for applying false trade marks, trade
descriptions, etc.
Any person who—
(a) falsifies any trade mark; or
(b) falsely applies to goods or services any trade mark; or
(c) makes, disposes of, or has in his possession, any die, block,
machine, plate or other instrument for the purpose of falsifying or
of being used for falsifying, a trade mark; or[]
(g) causes any of the things above mentioned in this section to be
done
shall, unless he proves that he acted, without intent to defraud, be
punishable with imprisonment for a term which shall not be less
than six months but which may extend to three years and with fine
which shall not be less than fifty thousand rupees but which may
extend to two lakh rupees:
Provided that the court may, for adequate and special reasons to
be mentioned in the judgment, impose a sentence of
imprisonment for a term of less than six months or a fine of less
than fifty thousand rupees.
Section 104 Penalty for selling goods or providing services to
which false trade mark or false trade description is applied
Any person who sells, lets for hire or exposes for sale, or hires or
has in his possession for sale, goods or things, or provides or hires
services, to which any false trade mark or false trade description is
applied or[], shall be punishable
Section 111 Forfeiture of goods
(1) Where a person is convicted of an offence under section 103 or
section 104, the court convicting or acquitting him may direct the
forfeiture to Government of all goods and things by means of
which the offence has been committed.
Assignment and Transmission
Assignment
Section 2(1)(b) defines assignment as – “assignment means an

assignment in writing by act of the parties concerned”
Assignment of a trademarks is a process in which the owner of the

trademark transfers the ownership of the mark.
Assignment may be complete or partial.

In a complete assignment, the owner of the trademark transfers all
the rights with respect to the trademark, including the transfer of
the rights such as right to further transfer, earn royalties, etc., to
another entity.
In a partial assignment, the original owner of the trade mark

retains the trade mark in respect of some of the goods and/or
services.
Transmission is defined in section 2(1) (zc)
“transmission” means transmission by operation of law, devolution
on the personal representative of a deceased person and any
other mode of transfer, not being assignment;
Section 37 Power of registered proprietor to assign and give
receipts
The proprietor of a trade mark shall have power to assign the
trade mark.
Section 40 Restriction on assignment or transmission where
multiple exclusive rights would be created
(1) A trade mark shall not be assignable or transmissible in a case
in which as a result of the assignment or transmission there
would… subsist… exclusive rights in more than one of the
persons… to the use, in relation to same goods or services… of
trade marks nearly resembling each other or of identical trade
mark, if [such] use… would be likely to deceive or cause confusion.
Section 45 Registration of assignments and transmission
(1) Where a person becomes entitled by assignment or
transmission to a registered trade mark, he shall apply to the
Registrar to register his title, and the Registrar shall cause
particulars of such assignment or transmission to be entered on
the register.
Use of Trade Marks
Section 46 Proposed use of trade mark by company to be formed,
etc.
(1) No application for the registration of a trade mark… shall be
refused… on the ground only that it appears that the applicant
does not use or propose to use the trade mark if the Registrar is
satisfied that—
(a) a company is about to be formed and registered under the
Companies Act and that the applicant intends to assign the trade
mark to that company…, or
(b) the proprietor intends it to be used by a person, as a registered
user after the registration of the trade mark.
Use of Trade Marks
Section 47 Removal from register and imposition of limitations
on ground of non-use
(1) A registered trade mark may be taken off the register… on
application made… to the Registrar or the Appellate Board by any
person aggrieved on the ground either—
(a) that the trade mark was registered without any bona fide
intention on the part of the applicant of using it … and that there
has, in fact, been no bona fide use of the trade mark up to a date
three months before the date of the application; or
Use of Trade Marks
(b) that up to a date three months before the date of the
application, a continuous period of five years from the date on
which the trade mark is actually entered in the register or longer
had elapsed during which the trade mark was registered and
during which there was no bona fide use of the mark…
Rectification & Correction of the Register
Section 57 Power to cancel or vary registration and to rectify the
register
(1) On application made to the Appellate Board or to the Registrar
by any person aggrieved, the tribunal may make… [an] order… for
cancelling or varying the registration of a trade mark on the
ground of any contravention, or failure to observe a condition
entered on the register.
Appellate Board
Section 83 Establishment of Appellate Board
The Central Government shall, by notification in the Official
Gazette, establish an Appellate Board to be known as the
Intellectual Property Appellate Board to exercise the jurisdiction,
powers and authority conferred on it by or under this Act.
http://www.ipabindia.in/
Appellate Board
Section 91 Appeals to Appellate Board
(1) Any person aggrieved by an order or decision of the Registrar
may prefer an appeal to the Appellate Board within three months
from the date on which the order or decision sought to be
appealed against is communicated to such person preferring the
appeal.
Introduction to Collective Marks
General Definition: A collective mark is a form of trademark or
service mark owned by a collective, whose members use the
collective mark to identify their goods and services and to
distinguish their goods and services from those of non-members,
and to indicate membership in the group.
A collective can be a cooperative, an association, or any other
collective group or organization.
It is often useful to smaller players who find it more convenient to

have a mark as a collective rather than individually.
Section 61 Special provisions for collective marks
(1) The provisions of this Act shall apply to collective marks subject
to the provisions contained in this Chapter.
Section 63 Application to be accompanied by regulations
governing use of collective marks.
(1) An application for registration of a collective mark shall be
accompanied by the regulations governing the use of such
collective mark.
(2) The regulations referred to in sub-section (1) shall specify
the persons authorised to use the mark,
the conditions of membership of the association and,
the conditions of use of the mark, including any sanctions against
misuse and such other matters as may be prescribed.
Introduction to Certification Marks
A certification mark is a form of trademark used to identify goods
and/or services that meet certain standards or specifications.
These standards or specifications include: quality, accuracy, place
of origin, raw materials, mode of manufacture of goods or
performance of services, other specified properties.
Trade Marks and Internet
We are broadly going to look at two headings in this topic:
1. Domain Name Disputes
2. Meta Tagging and Hyper Linking
Trade Marks and Internet
How does Internet work?
Domain Name Disputes
Domain names are alphanumeric names connected to IP
addresses hosting webpages.
Is there any similarity between TMs and Domain names?
Yahoo! Inc. v. Akash Arora, 1999 Arb. L. R. 620

Domain names and Trademarks
Akash Arora started to offer web-based services similar to those
offered by Yahoo.com under the name of Yahoo India. He also
registered the domain name yahooindia.com.
Yahoo Inc sued Akash Arora for using a Trade mark deceptively
similar to its own and passing off his services as those offered by
Yahoo Inc.
ISSUE:
Whether the act of Akash Arora in registering the domain name
Yahoo India, to offer services similar to those offered by Yahoo
Inc, is an infringement of the Trade mark of Yahoo Inc and
amounts to passing-off under the relevant sections of the Trade
and Merchandise Marks Act?
Yahoo Inc contended that Akash Arora adopted the domain name
of Yahoo to offer services similar to those of Yahoo Inc and had
attempted to cash in on the good will generated by Yahoo Inc.
because there was every possibility of an Internet user getting
confused and deceived, believing that both the domain names,
Yahoo and Yahoo India belong to Yahoo Inc.. Therefore, Yahoo Inc.
argued that Akash is liable for passing off.
Court held:
“domain name serve same function as the trademark and is not

a mere address or like finding number on the Internet and,
therefore, it is entitled to equal protection as trademark.”
When a defendant does business under a name which is
sufficiently close to the name under which the plaintiff is trading
and that name has acquired a reputation and the public at large is
likely to be misled that the defendant’s business is the business of
the plaintiff, or is a branch or department of the plaintiff, the
defendant is liable for an action in passing off.
The decision of the court in this case is based on the rationale

that where the value of a name lies solely in its resemblance to
the name or Trade mark of another organization, the public is
likely to be deceived by the use of such name and such act would
amount to passing off.
As the two trade marks/domain names ‘Yahoo!’ and ‘Yahoo
India!’ were almost similar and the latter offered services similar
to those offered by the former and as the latter passed them off
as being offered by Yahoo Inc., the court held Akash liable for
passing off and restrained him from using the deceptively similar
domain name.
Cyber-squatting
A cybersquatter is an individual, person, entity who uses a well

known trademark as a web address or in any other manner for
his own website as to give a deceptive impression that there is
some kind of affiliation with that trademark.
The UDRP: Alternative Dispute Resolution For Domain Name
Dispute
What happens when there is a dispute about who gets to have a

domain name?
Registration
Meta Tagging and Hyper Linking
Meta Tagging – What are Metatags?
Metatags being special lines of code are embedded in web-pages
and are often used by search engines in deciding the relevant
websites to show in a search result. When designing a Web site,
the designer will use different “tags” within the HTML code.
A metatag allows the designer to label his website by choosing the
descriptors or keywords that identify and describe the subject
matter of the Web site, imbedding such information within the
tag.
In short, metatags are basically keywords. When a person types a
particular keyword on a search engine, the search engine matches
the keyword entered by the person with the metatags of various
web-pages and accordingly displays the most relevant results.
With certain permutation and combination of keywords, it is not
very difficult to manipulate search engine results and lure visitors
to one’s website or a particular web-page.
A hyperlink is a word, phrase, or image that you can click on to
jump to a new document or a new section within the current
document. Hyperlinks are found in nearly all Web pages, allowing
users to click their way from page to page.
Deep linking is the use of a hyperlink that links to a specific,

generally searchable or indexed, piece of web content on a
website (e.g., "http://example.com/path/page"), rather than the
website's home page (e.g., "http://example.com/")
How could any of these activities lead to trade mark issues?

Mattel, Inc. and Others vs. Jayant Agarwalla and Others, 2008 (38)
PTC 416
The Plaintiffs were leading manufacturers of toys, games and
consumer products. One of the well-known products of the
Plaintiffs was the board game marketed and popularized by the
name ‘SCRABBLE’.
The Plaintiffs alleged that defendants launched an online version
of their board game under the mark SCRABULOUS, as an
application available through the popular networking website
Facebook.
In addition to making claims for unlawful adoption of deceptive
and confusingly similar mark for the online version of their game,
the Plaintiffs also contended that the defendants infringed their
mark by using metatags like, scrabble online, play scrabble online,
free scrabble online, play scrabulous live etc. which clearly
amounted to infringement and passing off, as the defendants, by
using such metatags, diverted internet traffic away from the
plaintiffs’ websites and misled the public that their (defendants’)
products are associated with the plaintiffs.
Moreover, the Defendants also used hyperlinks to the plaintiffs’
websites and rules for the scrabble game. Some of the hyperlinks
used were- download scrabble free, play scrabble free, free online
scrabble etc.
The Plaintiffs contended that the text of the hyperlinks,
independent of the content of the websites, is sufficient to
constitute infringement.
The defendants denied such allegations contending that they were
lawfully operating their websites and there was no attempt to
misappropriate any traffic.
Their argument was that the metatags used were in relation to
their product ‘Scrabulous’, and not ‘Scrabble’ and using the word
‘scrabble’ in coding was a method of describing their game and
therefore the same was not intended to indicate any brand.
Also, they averred that since the Plaintiffs did not have any version
of their game online, there was no question of diverting Internet
traffic.
The precise question in issue was whether use of metatags and
hyperlinks amounted to trademark infringement.
The Delhi High Court in the instant case restrained the

defendants from using the name SCRABULOUS, or any other
mark deceptively or confusingly similar to SCRABBLE, in any
manner, including by using it as part of domain name, or other
use such as hyperlinking, meta tagging, advertisement, or any
other such form of use.
The Court observed that unless appropriately restrained, the
defendants would continue these acts of infringement, and divert
internet traffic to their websites, causing considerable commercial
loss to the Plaintiffs.
People Interactive (I) Pvt. Ltd. v. Gaurav Jerry & Ors.
In this case, the plaintiff averred that the defendant was trying to
pass off his website as that of the plaintiff’s by using the plaintiff’s
trademark shaadi.com as meta-tags in his domain name
ShaadiHiShaadi.com.
Bombay High Court found that the plaintiff’s online property had
gained significant reputation and goodwill and that its domain was
well-known among the subscribers and in the public.
The Court also found that the defendant was using the tagline
‘World’s Biggest Matrimonial Service’ on his website
ShaadiHiShaadi.com which was almost identical to the tagline
‘World’s Largest Matrimonial Service’ that was being used by the
plaintiff on Shaadi.com.
The Court held that the defendant’s tagline was deceptively similar
to that of the plaintiff’s.
Terming the defendant’s conduct in this regard as ‘online piracy’,
the Bombay High Court held that – “There could be no better
evidence of passing off, confusion and deception. This is, plainly,
hijacking the Plaintiffs’ reputation and goodwill and riding
piggyback on the Plaintiffs’ valuable intellectual property.”
Accordingly, the Court granted interim injunction in favour of the
plaintiff.

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Well known Marks

Well known marks – the basic rationale

Under TRIPs, it is now obligatory upon all WTO members to

However, we are interested in understanding the scope of such

Thus, ‘niche’ fame suffices.

Rolex sued an Indian jewelry company for using the name/mark

The Business Week/Inter Brand Annual Ranking of 2008 of 100 Top

The list can be accessed at:

It has two parts:

be detrimental to the distinctive character or repute of the earlier

What does this mean?

Let’s look at the meaning of these.

Toy manufacturer brought action against music companies for

Our focus would be on the dilution claim.

The court then goes on to notice the free speech concerns in

The court then noted that “Although the boundary between

In Hoffman, a magazine published an article featuring digitally

Let’s also look at some important parts of the provisions.

All the information on forms and fee is available at -

Additionally – the website also allows an online public search of all

The journal for publication is available also at

The Protocol Relating to the Madrid Agreement Concerning the

The resulting "international registration" serves as a means for

How does the system work?

Before you can file an international application, you need to have

Stage 2 – Formal examination by WIPO

WIPO will record the decisions of the IP Offices in the International

At the same, India may be a ‘Designated Contracting Party’. What

In this case – WIPO would notify the Indian registry

Many of the principles and cases on the relative grounds,

Section 2(1)(h) ― deceptively similar — A mark shall be deemed to

(9) Where the distinctive elements of a registered trade mark

Thus, there is no trademark infringement.

The defendant was admittedly an erstwhile authorized dealer of

However, as this is slightly controversial, this may perhaps change

When should temporary injunction be issued?

American Cyanamid Co V Ethicon Ltd [1975] UKHL 1

Section 2(1)(b) defines assignment as – “assignment means an

Assignment of a trademarks is a process in which the owner of the

Assignment may be complete or partial.

In a partial assignment, the original owner of the trade mark

It is often useful to smaller players who find it more convenient to

Is there any similarity between TMs and Domain names?

Yahoo! Inc. v. Akash Arora, 1999 Arb. L. R. 620

“domain name serve same function as the trademark and is not

The decision of the court in this case is based on the rationale

A cybersquatter is an individual, person, entity who uses a well

What happens when there is a dispute about who gets to have a

Deep linking is the use of a hyperlink that links to a specific,

How could any of these activities lead to trade mark issues?

The Delhi High Court in the instant case restrained the

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