What is Branding?
The power of a company is identified by its brand and its trademark. The name, symbol design or logo of a company which help the consumers in identifying the products of a particular seller from that of other sellers is called Brand.
Why Brand Protection?
In this cyber world there has been an increasing instance of brand hijacking, trademark hijacking etc in which brand name and trademark of a reputed company is used by some other company to attract more customers. So there exists an increasing need for protecting the brand names of these companies from the hijackers.
So Brand Protection according to Black’s Law Dictionary is the act of preventing someone from illegally making and selling a product using a brand name owned by another company.
Legal Protection of Brand Names in India
The legal term for the term brand is trademark. Because of the cyber hijacking there exists a need for brand protection. So in order to protect ones brand one has to register their trademark in the countries in which it is planning to function. In India the law governing the Registration of Trademarks is the Indian Trade Marks Act, 1999 & Indian Trade Marks Rules, 2002 (and amendments thereof). The Trademark Act & Trademark Rules deals with the registration of trademarks relating to goods and services in India and it is applicable to the whole of India.
Ones trademark is registered i.e. by issuing of trademark symbol ™ or ® the owner of the registered trade mark has absolute right to trade that particular product, can stop the other traders from using his trademark unlawfully and he can sue others who use his registered trademark or brand name to publicize their products, for recovery of profits, damages and costs by issuing a registered notice.
Further the Indian Trade Marks Act, 1999 & Indian Trade Marks Rules, 2002 provides the owner of the trademark the right against comparative advertisements i.e. if another company uses the same technique of publicizing the trademark owner can sue the other company.
Further if any particular organization or company is using the registered trademark of another company it is not only committing a serious crime but it will also adversely affect the reputation and business of the trademark owning company. Sometimes a company may not be using the exact trade mark of another company but may be using a similar trademark and hence will create a misunderstanding among the consumers. These kind of activities mainly fall under two heads Infringement and Passing off.
Under Section 29 of the Trademark Act 1999 the infringement of right of owner company is said to be made if a company uses a similar trademark and uses it for marketing products similar to the products of a registered company and hence created problems It is further given in the Sub Section (9) of this section that the infringement can also be done by the spoken use of those words as well as by their visual representation.
The Trademark Act does not describe passing off but passing off according to common law principles is when the mark is not only similar to trademark of other company but is also creating a confusion for the customers, which ultimately results in damage for business of the company.
Legal Protection of Brand Names in United Kingdom
India has adopted the Intellectual Property jurisprudence from English Law. So both the laws relating to Trademarks Rights are similar
In the landmark case of World Wildlife Fund vs World Wrestling Federation, where two organizations was using the same abbreviated company logos i.e. WWF World Wrestling Federation had to change its name to WWE which stands for World Wrestling Entertainment. The problem lay in the confusion arising from same names being used by the two entities, which could affect the business procedures. The British courts ruled in favor of the plaintiff since it had violated a previous agreement and engaged in unfair trade practices.
In the case of Glaxo Smith Kline Pharmaceuticals Ltd. vs Unitech Pharmaceuticals Pvt. Ltd. the plaintiff the Glaxo Company was already selling products with trademark name “PHEXIN”, the defendant Unitech also started producing products with similar sounding name “PHEXIN”. So as a result of which the sale of Glaxos products were under risk from Unitechs Products. The court had to restrain the defendant from using this name or any other name which was similar to the plaintiff’s trademark.
Offences and Penalties
The criminal action of infringement or passing off is punishable under the code of Criminal Criminal Procedure, 1973, with an imprisonment for a term which shall not be less than six months but which may extend to three years and fine which shall not be less than INR 50,000 but may extend to INR 200,000
Kerala Law Academy