Trademark Infringement remedies by Company360.in

The market economy depends largely on consumers demand. An advertisement in the market is no doubt a form of speech and its true character is reflected by the object for promotion made by the employers in the marketplace. Marketing plays a vital role by bringing seller and buyer nearer to each other for materializing a transaction.

When a company promotes its products with the help of perplexing, deceiving or untrue statements it called deceptive marketing. And this type of marketing is very dangerous for the consumers as they are intentionally misled by the representation of nature, characteristics or quality of the goods and services offered by various companies. There are different channels used for advertising and promotion of the brand on a large scale, like newspaper, magazines, brochures, radio, TV and online on social media which all prone to the deceptive marketing. Deceptive marketing is the use of false or misleading information of the product in the market which captures the attention of the consumer through the usage of false information to persuade buyers into a business transaction that will not be beneficial to the buyer but it will give huge benefit to the one doing the deceptive marketing.

Kinds of Deceptive Marketing

There are various kinds of deceptive marketing available, from which people are fooling their customers and making a huge amount of money out of it through their deceptive marketing business.

  1. Photobleaching – This is mainly used in weight loss or gain and beauty cosmetic commercials, these types of advertisement draw untrue and unattainable results to the consumers and gives a false claim of the products to the viewers.

  2. Hidden fees and surcharges – it can be a way to companies to trick the consumers into paying an extra fee on the product that was advertised at a specific price (ex- shipping fee, tax etc.) as they make a profit on the actual item.

  3. Manipulation of measurement units and standards – when a seller cheating their customers by giving information which is not true or using standards which would not be extensively being understood by the customer. Basically, one is being informed or mislead by certain facts.

  4. Fillers and oversized packaging of the products – The Products sold with fillers increase the legal weight of the product. And the cost of manufacture is very little as compared to what the customer thinks off while buying such products.

  5. Misleading health claims – The words like “Diet, low fat, sugar-free and healthy food” are labelled with the products that aid a healthy lifestyle for people. So, people buy such products and producer make a profit out of it.

Drawbacks of Deceptive Marketing

I. Effects of deceptive marketing on the consumers

II. Lose of trust from your customers

III. Effects of deceptive marketing on the business

IV. One might get investigated

V. Incur financial loss

VI. Effects of misleading advertisements on Employees

VII. Effect on the perception of competition

Laws/Agencies to Control Deceptive Marketing

In the marketplace, the deceptive marketers are not making any direct reference to the protected intellectual property rights, but they may be transgressing the IPRs relating to the events indirectly. Trademarks play a crucial role in creating a brand name and goodwill of any business. The trademark is misled by making “deceptively similar” trademarks. This notion of deceptive similarity has been discussed in The Trade Marks Act, 1999 under Section 2(h) as:

“A mark shall be considered to be deceptively similar to another mark if it so practically resembling the other mark as to be likely to cheat or cause confusion.”

Whenever a trademark is said to be infringed, both civil and criminal action can be brought in the case. The successful of trademark infringement action depends on grounds – i) on want the registration of the mark ii) use of identical or similar marks by the defendant on particular goods and services.

If the event organizer has a registered trademark, and that registered trademark is used by an unauthorized sponsor, then the event organizer can commence proceedings for trademark infringement and if successful then –

  1. He will be entitled to restrain any further infringement.

  2. Or to a payment of damages or an account of profits.

  3. Seizure or confiscation of infringing goods.

  4. The arrest of Infringer, fines and penalties.

Precautions to be taken

The customer should be aware of the product and keep a full check on the product before buying anything from the seller. One must keep in mind the following sufficient measures to avoid deceptive marketing.

• Research on the product • Careful Label reading • Customers review
• Product comparison • Consumer reports • Read the fine print

Case laws

  1. M/S Allied Blenders and Distillers Pvt. Ltd. v. Govind Yadav & Anr.

• The plaintiff claimed that the defendant’s trademark “Fauji” is defectively similar with that of the plaintiff’s, i.e. “Officer’s Choice”. The assertion was made on the ground of similar idea in making of the trademarks as the word “Fauji” is a Hindi translation of a military officer.

• Both the parties are in the business of alcoholic beverages and the packaging of the bottles were alike. Although, trade design is major in deciding the cases of trademark infringement.

• The court declared that there is no deceptive similarity between the trademarks - “Officer’s Choice” and “Fauji”.

  1. SM Dyechem Ltd. v. Cadbury (India) Ltd.

• The plaintiff established a trade of chips and wafers under the trademark “PIKNIK”.

• The defendant started the business of chocolates under the name “PICNIC”. A suit proclaims that trademark infringement was filed after.

• The Court held the symbol is not to be deceptively similar as they are different in appearance and creation of words.

Conclusion

The belief of “deceptive similarity” is generally used in the Courts in matters of trademark infringement. Trademark is an important key to business and its goodwill to get it protected from misuse and infringement. Now, the Judiciary has taken interest in matters of Intellectual Properties and several principles and guidelines have been provided through various judicial decisions. The court has also looked after the problems, it is evident from the cases above that the courts are going beyond the literal meanings of the legislations to provide fairness and protection to the rights of the traders and guard the interests of the consumers.


Trademark Registration in India
Private Limited Company Registration in India
Trademark Objection in India

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