Kalashnikov applies for World Trademark

The arms designer credited with creating the AK-47, Soviet Lt-Gen Mikhail Kalashnikov, died last year. The Kalashnikov, or AK-47, is one of the world's most recognisable weapons. Kalashnikov Concern has paid more than USD 380,000 for rebranding  the rifles which includes a new logo “CK” written in black and red and melded into a single block. The logo stands for Kalashnikov Concern.

The arms manufacturer has applied to register a world trademark of AK-47 including for goods of 28 class under the International Classification of Goods and Services. As the Nice Agreement of 1957 the goods of 28 class include games and toys, gymnastic and sporting articles not included in other classes and decorations for Christmas trees.

The Intellectual Property rights Court has rejected another claim of Kalashnikov Concern against M T Kalashnikov firm, owned by the relatives of late designer regarding "image of a rifle with AK-47 marking."

This gun due to its easy manufacture and cheapness is very popular with terrorists and national armies in Asia and Africa.

-Shambhavi Mishra

“pŏm” lands into trouble

The largest maker of 100% pomegranate juice, Pom Wonderful filed an infringement suit against Hubbard before the 9th Circuit to restrain it from selling a pomegranate-flavoured drink labeled “pŏm”. Pom Wonderful contended that “pŏm” is likely to cause confusion among the customers due to similarity with its own trade mark “POM”.

The Court of Appeal is of the view that five factors weigh in favor of Pom Wonderful (strength of mark, relatedness of goods, degree of consumer care, similarity of marks, and marketing channel convergence) and three factors are neutral (actual confusion, defendant’s intent, and product expansion). None of the factors weighs in favor of Pur. There are many semantic, aural and visual similarities particularly in respect of the marks in the respective labels.

Thus, the district court was erroneous and has abused its discretion. The decision is reversed and an injunction is granted by the higher court to further public interest.

-Shambhavi Mishra

iPhone v. iFone

Apple’s iPhone was launched in 2007 and iPhone 3GS was brought to India by Vodafone in 2009. In 2007, Chennai based iVoice Enterprises’ mobile venture, India Phone or ‘iFon’ filed for registration of the btand and logo ‘iPhone’ but Apple filed a motion against it even though at that time Apple’s iPhone was not registered as a trademark. Subsequently, iVoice had to suffer huge loss and filed for rectification asking for removal of Apple’s ‘iPhone’ trademark from the registry, to which a counter was recently submitted by Apple.

Some points need to be focused in this case. Firstly, iFone is phonetically similar to iPhone. Both of them cater the needs of the same section of the customers. The syllable “i” is associated with the products of Apple. Similarly, iFone could have registered under India Fone  and it was registered at the time when the customers in India were eagerly waiting for the launch of iPhone. iFone is deceptively similar to  iPhone which is likely to be detrimental to the reputation of iPhone.

Though iPhone is a foreign, unregistered trademark, it can enforce its rights by establishing priority use, reputation in India, misrepresentation and injury to Goodwill in the claim of passing off. The judgment is eagerly awaited to see in whose favour trademark rights are upheld.

-Shambhavi Mishra

Italy follows India

As discussed in the earlier article “Made in India program” which can be reached here, Italy is also following the footsteps of India. It has also undertaken “Made in Italy” program with the aim to promote Italian-made fashion and textile products. Japan has initiated such program long ago and has even benefited from it especially in the arena of electronic gadgets.

The Italian government has decided to invest for the promotion so as to strengthen its hold in the United States.

This step can help them to reconfirm the trust in public involvement aimed at supporting development and giving hope to one of the most important productive sectors for the future re-launch of Italy.

-Shambhavi Mishra

Made in India Program

Government of India has initiated the MADE IN INDIA PROGRAM to promote the “Brand India” so as to facilitate investment, innovation, skill development and protect intellectual property but brand building is a difficult task and involves focus on a number of aspects.

Brand building essentially depends on the distinctiveness or strength of a mark indicates the source of the goods or services with which it is used. Public acceptance determines the strength of the brand which in turn depends on its unique character in its quality or when it has received intensive advertisement or both.

The need of the hour is to improve the “quality standards” as nothing can substitute the role of “quality” in brand branding. “Made in India” does not instill the same kind of respect as is commanded by “Japan” brand. This is the result of long term perseverance and brings a sense of positivism among the customers. “Made in India” has very weak reach among the customers on a global basis. Some of the products were banned or suffers due to its reputation on account of its quality.

Thus, the quality should be improved which in turn will promote the brand. Long term critical assessment is required for sustainable industrial growth. There is no shortcut to success.

-Shambhavi Mishra

Google lands into controversy

Google has landed into controversy with regard to its services, Google Books and Google News. Authors Guild has filed a lawsuit contending copyright violation and objecting three sentence “snippet” of a book that is reproduced by the search engine.

The 2nd Circuit U.S. Court dismissed the contention and held that the concept of snippet is highly transformative and falls within the ambit of “fair use” in copyright law. The Manhattan Court heard the arguments by way of an appeal. The approach of the bench seemed to favour the defendants stressing on extreme liberal approach of fair use. Judge Level is of the view that most classic fair use cases were based on activities that were commercial in nature.

The aspect that needs to be focused here is the traditional jurisprudence on fair use. According to it, mere reproduction in the absence of any value addition would not constitute fair use in such a profit-making scenario. Google Books makes no value addition to the book.

-Shambhavi Mishra

Overlapping of Intellectual Property Rights

In the case of Mukul Goyal v. Union of India and Ors., Section 15(2) of the Copyright Act has been brought under the scanner and has been contended by the petitioner to be ultra vires. As per Section 15(2), any artistic piece that is capable of being registered as a design, but has not so been registered, will lose its copyright protection the moment it has been reproduced more than 50 times. The petitioner has contended that S. 15(2) and 2(d) infringes his right to carry out his trade under Article 19(1)(g). Also Article 14 is violated as S. 15 imposes arbitrary restriction and the number of reproductions-50, is without any rationality.

As per Microfibres v. Giridhar, copyrighted artistic works simpliciter would not be hit by S. 15)2) while design works would be hit. This results in ambiguity due to overlapping Intellectual Rights. 

One solution can be to protect the original designs as artistic works under copyright law and amending the Copyright Act to ensure that any artistic work produced industrially more than 50 times is granted protection for only 15 years.

-Shambhavi Mishra