Friday, September 19, 2014

Distinctiveness in Trade Marks

It is a wide known fact and generally accepted concept of law, that for a mark/label/logo to be worthy of Trade Mark Protection, there should be a level of distinctiveness that the proposed mark/logo/label projects or promotes in the first place.

Distinctiveness has always been classified under the broader spectra of Inherent Distinctiveness, and Acquired Distinctiveness. It is a futile exercise to explain what can be categorized as Inherently Distinctive, like what Wrangler is to Jeans! The concept refers to a scenario where any name is arbitrary, fanciful and sets apart itself from the rest in the relevant product or service market.

On the contrary, suggestive or descriptive marks are not inherently distinctive; only when they achieve a degree of secondary meaning, when they acquire distinctiveness, can Trade Mark Protection be extended to such marks. India, like most other nations, allows for certain marks to be registered when satisfying the grounds for acquired distinctiveness; overlooking certain grounds for refusal of registration.

The significance of Acquired Distinctiveness has always been the subject of debate. When a mark gains popularity so much so as to help and let the consumers associate its products and services with the industrial house itself, such use of the mark is said to have acquired distinctiveness, a secondary meaning is attributed to such use, and product recognition by the consumers. The extent of this secondary meaning and acquired distinctiveness is what makes it possible for a mark to enjoy the desired Trade Mark Protection, when under the general circumstances it would have failed to do so.

- By Bagmisikha Puhan 

Tuesday, September 9, 2014

Fair Use Defense

Fair use as a concept stands on very tricky grounds. One cannot just be sure if the ground will stick through as fair use or not. In the scenario where such a matter reaches the courtroom, the time and finances that are invested into settling the dispute, many a times outweighs the benefit reaped out of the use in the first place.

For all those people who have been taking shelter of acknowledgments and disclaimers are not really safe. The very fact that one has acknowledged the original author in his or her use of the protected work does not preclude the person from their liability in a suit of infringement.  The fact that the original author has been cited can support the author in his claim of infringement; if he chooses to retort to the claim of a person infringing upon his right of publicity.

The fact that a disclaimer has been added to the use of the protected work does not preclude the user from his liability towards infringement. A disclaimer stands to prove stronger grounds for fair use, but does not stand as a ground for defense in its own merit.

One of the best ways to avoid any claims of copyright infringement is to abstain from using the protected material without the explicit permission of the original author. Apart from the usual factors which are taken into consideration while judging an instance of fair use, consideration of acknowledgements and disclaimers proves to be a viable option for the courts. 

- Bagmisikha Puhan