Trademark

Introduction
A trademark is one of the elements of Intellectual Property Right (IPR) and is represented by the symbol or . It is a distinctive sign, symbol or indicator which is used by an individual, business organization or other legal entity to identify uniquely the source of its products or services to consumers, and to distinguish its products or services from those of other entities. It could typically be a name, word, phrase, logo, symbol, design, image, or a combination of these elements. Trademarks are used to facilitate and enhance the marketing of a commodity and is a sign that indicates to consumers the source and reputation of the affixer of the mark and provides an important advertising and sales tool.

Importance Of trademark
The importance of trademarks lies in their association with quality and consumer expectations in a product or service. They can be seen as serving four main purposes: First, identifying the product of its origin, Secondly, advertising the product/service and lending it a brand name, Thirdly, protecting the business reputation and goodwill, and Fourthly, protecting consumers from deception, that is to prevent the buying public purchasing inferior goods or services in the mistaken belief that they originate from or are provided by another trader.

Trademark Infringement
Trademark infringement is a violation of the exclusive rights attached to a trademark without the authorization of the trademark owner or any licensees (provided that such authorization was within the scope of the license). Infringement may occur when one party, the "infringer", uses a trademark which is identical or confusingly similar to a trademark owned by another party, in relation to products or services which are identical or similar to the products or services which the registration covers. An owner of a trademark may commence legal proceedings against a party which infringes its registration. The laws relating to trade mark infringement are enshrined under Section 29 of the Trade Marks Act, 1999.

Essentials of Trademark Infringement

The taking of any essential feature of the mark or taking the whole of the mark and then making any alterations or modifications therein, or Using anothers trademark in the course of trade, business or course, i.e in a regular trade wherein the proprietor of the mark is engaged, or Use of the infringed mark must be in printed form; oral use of the trade mark is not infringement.

Effect of Infringement
A trade mark used by one other than the registered proprietor is likely to cause confusion in the mind of public or is likely to cause impression of association with the registered trade mark.

Remedies for Trade Mark Infringement

Whenever a dispute regarding trademark infringement arises, the following remedies are available against such infringement: Civil When instances of infringement and passing off occur, the court of competent jurisdiction (court not lower than district court) can be moved for a grant of interlocutory injunction, Anton Pillar Orders, damages and account of profits. Criminal Complaint may be made against the person causing infringement. Both the actions, the civil and criminal law, can be initiated simultaneously. Under the civil law proceedings, the plaintiff seeks reliefs for himself while under criminal law proceedings, the complainant seeks award of punishment to the infringer. Administrative Opposing the registration of a deceptively similar trade mark when the trade mark registry is in the process of considering the ground of a trade mark, can protect the trade mark. The registry can also be moved for removing of a deceptively similar trade mark, if registered.

Cases of Trade Mark Violation in India

The TATA vs. Greenpeace case

This is a recent case involving TATA Steel Ltd. and an international environmental NGO called Greenpeace. TATA Steel Ltd. plans to set up a steel plant at Dharma Port which is situated off the coast of Orissa and is purportedly endangering the lives of numerous Olive Ridley turtles habituating near the port. Greenpeace initially contended that TATA did not comply with all the requirements of the Environment Ministry whereas TATA argued that they had got the environmental clearance. Following thus, Greenpeace India raised serious concerns against TATAs new project. It launched an online game on its official website title Turtle v. TATA in order to generate public awareness regarding TATAs steel port located off the coast of Orissa, which is one of the last nesting grounds of the endangered Olive Ridley Turtles. The game, a rendition of Pac-Man involves the yellow turtles to eat as many white balls and other sea animals without running into the TATA demons. TATA Group contends that Greenpeace India infringed their trademark rights and maligned their reputation by using the TATAs trademark and logo, the T within a circle to portray the demons in the game.

 Greenpeace India has relied upon Section 29 (4) of the Trade Marks Act, 1999 which states that: 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 (a) is identical with or similar to the registered trade mark; and (b) is used in relation to goods or services which are not similar to those for which the trade mark is registered; and (c) the registered trade mark has a reputation in India and the use of the mark without due cause takes unfair advantage of or is detrimental to, the distinctive character or repute of the registered trade mark.

 Greenpeace maintains that since the trademark (T within a circle) was used for gathering public support against the construction of Dharma Port Company Ltd. and to fairly criticise the acts of the TATA group, it in no way infringed their trademark rights. Greenpeace contended that there was no intention to defame the TATA group, whereas the TATA demons were used as a medium to inform the people of the harm the new project of TATAs could cause to the already endangered species of turtles.

 The law of trade mark in India allows the usage of ones trade mark by another only in certain situations. This provision has been described under Section 30 (1) of the Trade Marks Act, 1999 and reads as follows: Nothing [...] shall prevent the use of registered trademarks by any person for the purposes of identifying goods or services as those of the proprietor, provided the use: a) is in accordance with the honest practices in industrial or commercial matters, and; b) is not such as to take unfair advantage of or to be detrimental to the distinctive character or repute of the trade mark.

 It is important to note here that if the infringer has absolutely copied the mark and made a facsimile repression of it, no further evidence is required to prove trade mark infringement. When the similarity is so close so as to make it impossible to suppose that such marks were devised independently of each other, in the absence of evidence of a common origin, the conclusion is always that one party copied the mark of another and suitably Greenpeace should be liable for trade mark infringement. Greenpeace India submits that its use of the TATA trademark and "T" device does not amount to trademark infringement, as it is not commercial usage, meant to profit or gain from the goodwill or reputation of such marks.

Judgment
The Delhi High Court has declared that Greenpeace India, which is a non-profit organisation, has not indulged in any profit-making by launching the Turtle v. TATA game on its website. Also the aim of the user of the trademark was to invite the attention of the people towards the owners of the trademark. The use of the TATAs logo by Greenpeace has been termed merely denominative in nature by the Court and the use of the trademark as an object of critical comment does not amount to infringement.

Thank you