-By Jaya Pathak
Majority of the founders believe that brand theft starts with a lawsuit. It rarely does. It starts with a sluggish copy of a marketplace listing, a lookalike Instagram account that accidentally happened to show up during your campaign, a distributor that registers your name in a class that you never thought of, or even an opponent that copies your packaging so well that clients start accusing you of the quality issues.
What is a trademark?
A trademark has been defined as marks which can be represented in a graphic form and can identify the goods or services of one person and not those of another person and it may also encompass the shape of the goods, the way they are packaged or a combination of the use of colours. The definition of the term mark used in the Act is quite broad to encompass devices, brands, labels, names, signatures, words, letters, numerals the shape of goods, packaging, and combinations of colours.
That breadth is not scholarly and that is why today brand conflicts are not only about trade dress issues and visual language but also about the wordmark itself.
It is also because serious protection of the brand starts prior to the filing. It is paperwork to file and it is strategy to be distinct. Under the Trade Marks Act, there are absolute grounds which place in the way of registration, such as marks which lack distinctive character and marks, which comprise merely indications which may be used in trade to identify characteristics of goods or services.
When a business insists on creating its identity based on generic descriptors, such as: Premium, Natural, Best, Original, it is not doing minimalism, it is choosing to be under a weakly defended and very foreseeable critique.
Trademark Filing
Even the mechanics of its filing demonstrate the form in which the State conceives trademarking to operate: an applicant willing to make registration submits an application to the Registrar in the specified format, and each application may include an application to more than one class, requiring payment of a fee per class. The Registrar also has the role of classifying goods and services, as much as possible, according to the international classification of registration purposes.
These clauses have something procedural to them but commercial implications because brand protection is no longer a one-decision matter; it is a portfolio matter that cuts across classes, products, and probably across adjacencies, particularly where the company anticipates expanding into either private label, licensing, or digital services.
What has been overlooked is that the Act silently conforms to the contemporary reality of cross-border branding. It includes a special chapter on safeguarding with international registering in the Denver Protocol, which portends that Indian trademark policy is no longer national recording together with sporadic international counsel referrals. With an exporting based enterprise, or any business that are most likely to be imitated outside India, it is the distinction between responsive enforcement as opposed to strategized growth of rights.
However, the filing of a trademark is not the declaration of victory; it is the request to be questioned. The Act also gives an opposition window i.e. any person may take an opposition notice within the three months of the date of advertisement or re-advertisement of an application, and an extension to a limit of one month in all notified by the Registrar. The competition in the market is presented as malice. Sometimes it is.
More usually it is business hygiene: incumbent firms pay attention to filings due to their knowledge of something younger firms lack: that confusion in the market place is simpler to avoid at the time of registration than to untangle once it is internalised by the customer.
According to the Act, a mark will be considered deceptively similar to another mark when it is almost comparable to the other mark and is likely to be deceptive or confuse the other mark. Even that is a deliberately human standard: it activates likely confusion and not typographic differences that can be identified by lawyers and not by customers. In brand-copy cases, a clever legal argument is hardly ever convincing enough: it is the behaviour of the market, itself, false complaints, false orders, misunderstood channel partners, screen shots of customers labelling the wrong handle.
But it would be foolhardy to assume that registration is the solution to providing an end to the anxiety. The Act presents a very clear demarcation between the registered marks and unregistered marks. According to it, any individual has no right to initiate an action to stop or reclaim damages because of the infringement of an unregistered trade mark.
Meanwhile, it expressly operationally safeguards rights of passing off as well. This division explains the fact that founders who refrain from filing are occasionally encountering a more evidentiary intensive fight: passing off can be strong, but it requires evidence, such as goodwill, misrepresentation and damage, where a registered mark alters the battle lines of conflict.
Where registration applies a more definitive statutory benefit is obtained. It is stipulated in the Act that with the registration the registered proprietor is granted right of exclusive use of the trade mark as far as the goods or services that it is registered are concerned and in order to receive relief in case of infringement as stipulated by the Act with conditions and limitations.
This is not as relevant to boards and investors, as it is a legal nicety, however, it sends the signal of good governance: the company has done the bare minimum to transform brand equity into enforceable rights, as opposed to having it be a tenuous marketing asset.
Infringement
Speaking of infringement, the businesses will also be likely to underestimate the locations where the debates are actually contested. Lots of brand-copy battles take place not only in terms of registry procedures but also in terms of civil proceedings. This is expected in the structure of the Act: it includes some provisions on the forum of suits to be brought on infringement as well as a particular provision on relief in suits to be brought on infringement or passing off.
The remedies, injunctions, damages, accounts of profits, are not punishment, they are designed to prevent the confusion, and will prevent it promptly, since where there is a dispute between the brands time is money. A permission slip in regard to the infringer to reap the season of demand is sometimes a delayed injunction in actual practical use.
Well-known mark is one of the categories that sophisticated brand owners also pay attention to, and this is one of the directions that Indian business persons are also striving to achieve. The Act provides considerations that the Registrar should believe when making a determination as to whether a mark is well-known, which include knowledge or recognition within the appropriate section of the population, length of time and prominence of use and promotion, registrations and applications as regards recognition and effective enforcement.
It further indicates that Registrar may not insist as a prerequisite to ascertaining whether a mark is well known that the mark is used in India that the mark is registered or that application has been made in India etc.
Conclusion
To the leaders of a business, the lesson of operation is simple though the execution is not: brand protection is not an event but a system. The filing is the anchor, but the actual discipline comes through an unending process- watch services, monitoring the market place, distributor deals that regulate use of brands, packaging deal and a consistent readiness to limit oneself to act at the earliest rather than theatrically in the middle it is a steady willingness to action early.
