COPYRIGHT AND TRADEMARK

INFRINGEMENT: COMPARATIVE ANALYSIS

INTRODUCTION
Copyright and trademark are both varieties of holding rights that help
provide its creator rights over the use of her/his creation for a limited period
of some time. Businesspersons who are looking to register a holding must
know the differences between the two then obtain the proper registrations
to safeguard it during this text, we shall study the differences between
copyright and trademark in India.

WHAT IS COPYRIGHT
Copyright can be said a right given to the creators of literary, musical, dramatic, and
artistic works and therefore the producers of cinematograph films and therefore the
sound recordings.1 A copyright doesn’t protect names or brands, slogans, short word
combinations, short phrases, plots, methods, or factual information. Copyright also
doesn’t protect ideas or concepts. Hence, copyright is generally wont to protect the
creativity of individuals like writers, artists, dramatists, designers, musicians, architects,
and also the producers of sound recordings, cinematograph films, and also the
computer software.2

WHAT IS TRADEMARK
A trademark might be a word or a visual symbol being employed by any business to
help people distinguish its goods or services from that of the alternative similar goods or
services which might be originating from a special business gets protected. A trademark
application must be filed to register a trademark by the applicant with the relevant
Trademark Registrar within the format that has been prescribed. Trademarks are
generally used to protect brand names, business names, slogans, etc 3
A COMPARISON BETWEEN COPYRIGHT AND TRADEMARK
Both Copyright and Trademark have different and distinct uses. Their validity and also
the requirement for registration also vary as follows

: Copyright:

A copyright is usually accustomed to secure literary, musical, dramatic, and also artistic
works including cinematograph films and therefore sound recordings. A software or a
program or tables and databases can all be registered as a ‘literary work’ under
Copyright Act.

Copyright would be a right within the eyes of the law which provides a privilege to a
person who originally creates the work. anyone with copyright must use it in a judicious
way as per the provisions of the copyright law. Those that are creative or who write an
artless piece of labor receive copyright. Writers, poets, painters protect their original
piece of labor with copyright. Nevertheless, to get the copyright for software, the ASCII
text file for the software must be submitted to the Copyright Office together with the
appliance. Trademark: Trademarks are generally utilized by individuals, commercial and
non-commercial bodies to shield the brand names, business names, slogans, and more.
an idea or inspiration or software cannot be trademarked. But, a singular name given to
an idea or software is often trademarked. plenty of companies use their trademark or
the packaging of their products or on the merchandise itself. This provides them with a
protection 4

Their validity and also the requirement for registration also vary as follows:

Copyright: A copyright is usually accustomed to secure literary, musical, dramatic,

and also artistic works including cinematographic films and therefore sound recordings.
A software or a program or tables and databases can all be registered as a ‘literary
work’ under Copyright Act.5 Copyright could be a right within the eyes of the law which
provides a privilege to a person who originally creates the work. anyone with copyright
must use it in a judicious way as per the provisions of the copyright law. Those that are
creative or who write an artless piece of labor receive copyright. Writers, poets, painters
protect their original piece of labor with copyright. Nevertheless, to get the copyright for
software, the ASCII text file for the software must be submitted to the Copyright Office
together with the appliance. Trademark: Trademarks are generally utilized by
individuals, commercial and non-commercial bodies to shield the brand names,
business names, slogans, and more. an idea or inspiration or software cannot be
trademarked. But, a singular name given to an idea or software is often trademarked.
plenty of companies use their trademark or the packaging of their products or on the
merchandise itself. This provides them with protection against their goods, brand, or
mark from others using it. The one who owns the trademark can pursue proceedings
against someone for using his trademark. 6

A trademark's primary aim is to 'distinguish one person's goods from another'

Thus, a trademark helps a customer to recognize the products and their sources.
Therefore, if an advertiser uses the trademark of a rival to make a distinction between
its products and those of its competitor and dismisses them in the process, such an act
on the part of the advertiser will not only invoke issues relating to comparative
advertising and product dismissal but would also invoke issues relating to infringement
of a trademark.
The law on the comparative advertisement and product disparity in relation to
trademarks in India is based on the law laid down in Irving's Yeast Vite Ltd v FA
Horse-nail. Section 29(8) of the Trademarks Act, 1999 denounces circumstances
where infringement may arise from the use of a trademark in advertising. It states that
any advertisement which is not compatible with honest standards, or which is harmful to
the distinctive character or the prestige of the mark, is an infringement. At the same
time, Section 30(1) makes comparative ads an exception to the violation actions
referred to in Section 29. It specifies that any advertisement that is compatible with
honest standards and does not affect the distinctive character or the prestige of the
trademark is acceptable and does not constitute an infringement.

whereas

In Copyright Individuals and companies who develop new works and register for
copyright protection do so in order to ensure that they can profit from their efforts. Other
parties may be granted permission t may purchase the works from the copyright holder;
however, several factors may lead other parties to engage in copyright infringement.
Copyright infringement issues have varied over the years, but with rapid advances in
technology, the Copyright Office has faced a growing number of issues in an effort to
keep pace with innovation. Like technology, the Internet, non-economic rights,
photography, and visual assets

Validity
 Copyright: The broad rule is that copyright lasts for 60 years. just in the case of
artless literary, dramatic, artistic, and musical works the 60-year period is
counted from the year following the death of the author. within the case of
cinematograph films, photographs, sound recordings, posthumous publications,
 anonymous and pseudonymous publications, the works of state, and also the
works of international organizations, the 60-year period is counted from the date
of the publication.
 Trademark: Trademark registrations are valid for a period of 10 years from the
date of application. This validity may be extended at the tip of 10 years by filing a
trademark renewal application.

REGISTRATION
 Copyright- The review and acceptance of a Copyright application is controlled
by the Copyright Office, Department of Higher Education, and Ministry of Human
Resource Development.
 Trademark: The review and therefore the acceptance of a trademark application
is controlled by the Controller General of Patents, Designs and Trademarks,
Ministry of Commerce and Industry.

Case laws of copyright

 On co Sony Pictures Network India Pvt. Ltd. vs. www. Sports all.tv And
Ors., High Court of Delhi, CS(COMM) 289/2021
In this case, Sony Pictures filed a suit against numerous defendants primarily praying
for a permanent injunction against reproducing, making available, distributing,
broadcasting, and so on of the cricket matches between India’s tours of England and Sri
Lanka. During the pendency of the suit, Sony Pictures prayed for interim injunction
relief.
The Court granted an injunction in favor of Sony Pictures against websites including
their redirects, mirrors, and alpha-numeric versions. A dynamic injunction was also
granted against rogue websites, which may reproduce, broadcast, make available,
communicate to the public or distribute the cricket matches. The Court also passed an
order asking ISPs to block the mentioned and other rogue websites and asked the
Government of India to give appropriate directions to prevent infringement of copyrights
of Sony Pictures matches.
The interim injunction also covered MSOs and cable operators, and local
commissioners were appointed to monitor and act against violations of the Court’s
orders. The Court’s orders primarily cover the copyrights held by Sony Pictures, and by
implication permits non-infringing uses and fair uses of the content pertaining to the
cricket matches between India and England/Sri Lanka. Copyright

 Krishna Kishore Singh vs. Sarla A. Saraogi & Ors., High Court of Delhi,
CS(COMM) 187/2021
In this case, the Delhi High Court refused to grant an interim injunction against
publication and release of films purportedly related to Sushant Singh Rajput (SSR) as
the plaintiff, SSR’s father failed to make out a prima facie case, and because irreparable
harm and balance of convenience were in favor of the defendants. The plaintiff in the
case argued that films and series such as ‘NYAY The Justice,’ ‘Suicide or Murder,’ and
‘Shashank,’ must be injuncted and restrained from being released, published, and
communicated to the public. The plaintiff filed the case on several grounds including
violation of publicity rights and privacy rights, right to a fair trial, defamation, and
violation of Article 21 of the Constitution.
After reviewing the facts and relevant cases, the Court came to the conclusion that the
plaintiff failed to make out a valid case for violation of celebrity or publicity rights of SSR
or his family members because the plaintiff was not aware of the content of the films,
the defendants were not using SSR’s image, likeness or name, and because the films
had appropriate disclaimers. It also pointed out that celebrity rights may not subsist after
the death of the celebrity, and that facts that form part of the public record may be used
by the defendants without liability. About defamation, the Court stated that a case of
defamation is merely speculative without access to the defamatory content.
The Court also pointed out that no violation of the right to a fair trial may be
contemplated because of publication in news or by way of films. It went on to note that
freedom of expression prevails over Article 21 for information that forms part of the
public record. While denying the injunction, it asked the defendants to render accounts
as any damage may be compensated by way of damages.
 Godrej Soaps (P) Ltd v Dora Cosmetics Co
The Delhi High Court held that where the carton was designed for valuable
consideration by a person in the course of his employment for and on behalf of the
plaintiff and the defendant had led no evidence in his favor, the plaintiff is the assignee
and the legal owner of copyright in the carton including the logo.

Case laws for Trademark

 Starbucks vs. Sardarbuksh
Starbucks brought forward a suit against Sardarbuksh for using a very similar logo to
that of Starbucks and using a name that gives a customer an impression of similarity
between the two, leading to confusion. The judgment was in favor of Starbucks and the
court directed the respondent to modify their name but nothing in regards to the logo
since Starbucks had made changes to their logo. It was noted that the judgment
pronounced also took into consideration the facts that the similarity in the names and
logos had led to economic hurdles for Starbucks, which is a global brand present in the
coffee business for a really long time due to which the company has accumulated
goodwill and it was noted that the defendants were aware of this and did what they did
in order to gather attention in the market at a faster pace.
 .Mitsubishi vs. Fiat
This case is from the U.K. court of appeals which involved 2 automobile companies, the
Italian company, Fiat, and a Japanese company, Mitsubishi. On the grounds that the
two markings were visually distinguishable, the court permitted the registration of the
mark “Lancer” for Mitsubishi cars as opposed to “Colt Lancer” for Fiat cars. This case
also puts down the basis on which one can determine the confusion for a customer,
whether the confusion is real and proximate and not fanciful and remote. The court
dismissed the appeal stating that “when considering the risks of confusion, the purchase
of a car is not to be equated with an everyday purchase over a chopping counter; a car
is unlikely to be purchased over the telephone and that matter will usually be considered
with care and advice
 RAJEEV SAUMITRA V. NEETU SINGH & ORS. 
What if the owner becomes an infringer?
This is one of the Cases that deal with the provisions of Trademarks Act, 1999 as well
as the Companies Act, 2013 where one of the Directors of Paramount acted in bad faith
and started using the trademark of the Company for personal gains and was
subsequently punished by the Court to repay to the Company the undue gain already
made. However, the present case was decided under Section 166 of the Companies
Act, 2013 but the reliance was made on Trademarks Act for the undue use of the
Trademark by none other than one of the owners itself.

CONCLUSION
The idea of being able to find success through visible patches which in my opinion is the
idea these laws try holding onto. In totality, the rights against Trademark and copyright
infringement are used for the right purposes as well to show how sometimes laws are
not being used for what they were meant to be used for and aren’t that what our rights,
to make sure that the law is interpreted in the most appropriate manner i
i