Wednesday, October 15, 2014

What's in a Name?

Brand names matter a lot. A consumer’s confusion can only be put to rest after you feed him/her with a distinctive mark to distinguish between different goods and services. An intelligible Trade Mark Attorney/Lawyer can explain to you how it is better to coin a fanciful word like “Kodak” for Cameras; and an arbitrary word like “Apple” for computers; instead of thinking of a generic name like “Aqua” for bottled water.

A trade mark or service mark determines your claim to the characteristics that identify the goods or services that your business involves with, allowing the consumers to cite the differences between what is yours’ and what is that of the competitors’.

Some names have had what is known as “inherent distinctiveness” and so have got protection without much ado, like, Kodak, Exxon, etc. And, there of course is the concept of marketing, advertising and positioning of products and services in a manner, that the brand name is etched in the minds of the eager consumers. Trade marks (inclusive of service marks) which are names or geographical terms, have to prove that they have become distinct in the market, through substantial sale figures, and advertisements; and, have said to have acquired “secondary meaning” as a consequence.

What a business house does not want is for the brand name to become a generic name. Xerox has been vocal with their slogans and advertisements, with declarations like “you cannot ‘xerox’ a document, but you can copy it on a Xerox Brand copying machine”. Despite so many efforts from their end, dictionaries have oft quoted “Xerox” in their prints.

Whenever, you decide to venture into any business with a new trade mark, consult a Trade Mark Attorney or Trade Mark Lawyer in respect of selecting an appropriate trade mark which is free from any legal encumbrances. 

- Bagmisikha Puhan

Tuesday, October 14, 2014

Product Disparagement

To say my product is superior is fine; but to say, that your/his product is bad, definitely calls for action. Advertisers have always used the test of comparison for the benefit of their clients, but when the comparison is false or misleading, the advertisement slides into the domain of Product Disparagement. To make an advertisement, and to see it succeed without getting involved in legal battles, one has to ensure that the message showcased in the advertisement does not encroach into the non-permissible limits of comparative advertising.

The courts have been supportive of the cause of Comparative Advertising, bringing a clear distinction between this and Product Disparagement, also referred to as Trade Libel. In Reckitt and Colman of India v. M.P. Ramachandran & Anr., [1999(19) PTC 741], the court very categorically specified that, the seller can, (i) declare his goods as the best, (ii) claim superiority of his goods over competitors’, (iii) compare advantages of his goods over that of others’, but, (iv) cannot say that his competitors’ goods are bad.

Since there is no specific legislation on the subject in India, the issue still evolves and bases itself on the common law principles. Unlike, the categorical demonstration and application of the Lanham Act, which governs the law of Trademarks in the US; Indian courts are still settling the issues with their own judicial insights and interpretations. 

- Bagmisikha Puhan