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Written by : Shalanda Candland
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that those marks which those branches are very popular they have been protected through with one trademark so what is trademark dilution trademark dilution is one of the activities through which you make an effect you can save on the recognition of that variable monthly not in any way if you are doing it your dilution simply means that you are listening or minimizing or you can say in any way comparing the image of that with a trade bar which has been considered as well so how can you do that you can do that I have already gone through so I am just you know summarizing it I will send you that video so there are three modes through dilution put one is like one is through blurring blurring as you know if you are just making it very I mean no I mean little unclear that very image which is being produced by that trademark so letting you can do by having certain changes in that way trademark but still people make the connection that Rick is coming father well known trademark so that is blurry next thing is garnishment tarnishment means if you are comparing the image of that very mark by your act where it could be like defamed or something like that so if you use something scandalous or something like that obscene or something like that then in that very case that remark could be diluted by godness matter the third one is free riding free riding is considered as a concept we have already discussed that if we both of your views some other persons because it is not properly protected some other person can take advantage of it so because of that that term is considered as free riding so free riding means that the other person is in able to take advantage without having any significant implication the mod so in that very case that is also being considered kind of violation because you are taking unjust benefit from it but in free-riding cases that is not that much intense because sometimes it makes a sometimes is not so all these things I have discussed in the previous lecture so I will be sending you so I don't think that there will be any problem so just this will be start with the Indian position and we must dismiss two cases today so starting with trademark dilution how India defined said in the very 1999 act under Section 29 clause for the trademark Act 1999 it defined how dilution could occur so if you go by this very provision you have to pay heed to certain things so as is it was a registered trademark is infringed by a person who not being a registered proprietor or a person using by we are permitted use so it means to say either registered proprietor or a permitted user that is not the case so in that very case uses in the pores of trained a mark which kind of mark a mark which is a mark which is identical with or similar to the registered trademark number one first condition second condition is is used in relation to goods or services which are not similar to those for which the grademark is registered and third point is the registered trademark has a repetition in India and the use of the mark without you pause takes unfair advantage of or is detrimental to the distinctive character or repute of the resistant rate so as you see here there are two previous conditions that is must be either identical or similar there is nothing which has been given as a kind of confusion or something like the septal similarity that criteria is not being considered here here the criteria is that that very percent with an unauthorized user is using a mark as a trademark which is identical or similar with the registered trademark or and is used in relation to words here you must have to pay attention that it is used in relation to goods or services which are not similar to those which have been already registered so simply if you go by the infringement cases you find that the goods or services are normally they are similar in cases of infinity but here in this very case the billing visit is they are not similar because it is a well-known trademark as you know so it is applied to non similar goods and services - so because of that this very criteria is very important third one is that and these two are not enough that you can prove that is identical it is similar and they are losing in connection with some other boots apart from that because the term and is there and if there means it is conjunctive and it must be taken into account so third one is a very essential component of it that the registered trademark has a reputation in India you have to prove it and the use of the mark without the boss takes unfair advantage so this is also important so first thing is that that mark must be refuted in India because we are considering the well-known trademark and second thing is that that mark was used without due cause and the person who is using it taking unfair advantages or the use is detrimental to the distinctive character or repute of the registered so this is all about the Indian so there are certain issues as unlike some other problems which deals with infringement there is no requirement of confusion in this section which I have already second thing is that extent of repetition is not defined how can you assist whether it is reputed or not no parameter has been set under this very Act third thing is that third thing is that there is no need to satisfy the requirement of confusion so all these three things are there which I mean as an essential condition you need not to satisfy the inclusion angle though coming to the next one which is about the comparative advertising so one thing you can move by you know diluting that dilution may also not only be taken in the real use but it may also be taken into account through comparative eyes so what is comparative under advertising this twenty-ninth was it defines it like this a registered trademark is infringed by any advertising of that trademark if such advertising takes unfair advantage of and is contrary to honest practices in industrial or commercial so as you see here it is very factual and you have to substantially prove it in the court of law that it is taking unfair advantage or it is contrary to honest practices what are honest practices must be defined second thing is that it is all it is detrimental to its distinctive character even if you are not taking that advantage but if it is detrimental to the distinctive character then it would Paula fie for the comparative advertising clause and third one is because everywhere the alternative is mentioned that is all or like that so is detrimental to its distinctive character or is against the repetition along with that there is a section 29 plus nine which says where the distinctive elements of its registered trademark consists of or include words so it is taking a peculiar yourself where the trademark is used in forma words the trademark may be infringed by the spoken use of that words as well as by their visual representation and reference in the section to the use of the mark shall be construed so in case of the words as you see miss well as well as any sound a bill like in the form of spoken word both are considered so there are certain concerns whic
Thanks for your comment Stanley Rey, have a nice day.
- Shalanda Candland, Staff Member
so starting with this we have already discussed well-known trademark and there we have a lot at what is well known trademark white has been recognized so as you know well-known trademarks are the kind of exception which has been recognized for protecting the will moon branch because they have that very I mean reputation all around the world and they made that very effort so to incentivize that Vidya fir we recognize well-known trademark number one number two because there are chances that people may get advantage in the country just getting advantage of the mark which is a well known trademark because of that also will know trademark in recognized now we are dealing with trademark dilution and comparative advertising in India so what is that so dilution you just go by the etymology or you can say the generator what does it mean so what does dilution mean the aleutian means lessening or minimizing or in any way narrowing down some sort of reputation or some sort of you can say the image of a particular mark that would be considered as dilution so trademark dilution means whatever reputation has been created whatever will has been created that has be distorted or you can say minimize or adversely affected by someone who is using some other mark which have some identical you can say similarity or visible similarity to the previous bell moon trademark so the whole concept of trademark dilution was dealt before under the passing of accent because we don't have that kind of specific browser which we have now we have and that would be 9 oz forward we have incorporated the provisions relating to the trademark dilution that is why that is recognized as well as that has been taken care of and you can see the significant changes which were there when this was not included in our trade not wha so having said that there are two terms which I have used trademark dimension and comparative advertising both have to do something with some mark which which is a popular one which is a very famous one and the other one is making some sort of impact by its use so in cases of comparative advertising the competing mark suppose there is one mark the other my trademark which is used in competition is being used in a way where it is just you know describing something which is just an improvement over the previous product that is fair enough but if it is being done in a way where it impairs the image of the previous mark then that comparative advertising is to be is considered to be objects late so these are the trends which were just you know prevailing in the domain of trademark so let us start with trademark dilution as per our syllabus there are two segments which we have to take into account one is trademark dilution and contemporary areas where we will discuss the case of ITC limited versus Philip Morris products and under this next head protection of trade dress and color combinations tarnishment of trademarks comparative advertising disparagement here we will discuss a number of cases which are being elaborated just below so first start with the trademark dilution so we have to look into the history of that white has been you know ed white has been introduced what was the need so as you know there are big players in trade there are small players in trade so there are some tendencies in trade domain which are responsible for the trademark dilution provisions so first of all that there was a changing trend in business and there was a wave of globalization which allows the various companies which were a giant companies to carry their business or to introduce their business in different countries so because of that they need some protection in various countries so this was one of the reason why the provision relating to trademark vanish and was required number two expanding trademark protection beyond its traditional limits so this was another I mean a kind of tendency among those trademark holders that were pushing that their mark should not only be protected from their boundary but beyond that and this is also because they seek to have a monopoly advantage then there was an obvious reflection of the ever increasing demand for extending more and more protection to famous tree so as I said that there were some I mean prevailing forces in the form of big companies which were just you know forcing this very regime to recognize the demand for famous protection of famous trademarks and again the doctrine of territoriality as I have discussed in the case of well-known trademark it has been you know diluted because of international global trade so famous marks repetition now transcends beyond the territorial limit and it extends to even unrelated fields of activity so what is the definition of trademark that isn't that we will be coming up but it must be very clear in your mind but whenever we talk about trademark dilution some sort of famous mark on you can say when your mark is at which concern because the dilution which we are concerned with is related to the famous mass so TM dilution theory seeks to extend maximum protection to this potential capacity so the whole whole idea is to preserve the uniqueness and security of the trademark which is very important trademark of the unit so now the question comes how this dilution offers how it would be given effect so there are three moves through which trademark dilution the first one is through harnessing or you can say impairing the image that is tarnishing then in blurring creating kind of confusion or you can say making it this is distinct the digital best bloody and free writing free writing I have already explained to you in our my previous discussions that if because of certain positive externalities because that is not doing the mark is not protected significantly some other computer may take benefit of it that is termed as free doubt I mean to say you are doing something without repaying or paying that advantage to that very mark which you are using so that is 10 best free learning so now what is the definition of trademark dilution trademark dilution refers to acts that weaken the uniqueness of a famous trademark typically as a result of blurring or Douglass mentor famous MA so these two are very common the other free-writing was not that much common so unlike trademark infringement trademark dilution involves use of a mark in connection with goods or services that do not compete with those connected to the famous mark so here you have to clearly understand this thing that in case general cases of or you can say normal cases of imprint them there is no there is always a requirement that the goods and services must be identical or similar but when we talk about trademark dilution the case becomes very different because here the the requirement is that the goods or services there do not compete with those connected to the famous mark so it must be very clear this is a different exceptional case for infringement which is being described under Section 29 + 4 so far a mark to be considered famous what is the requirement it must have achieved extensive public recognition so I mean it is a question of fact you
Thanks Rodrigo your participation is very much appreciated
- Shalanda Candland
About the author
I've studied psychoanalysis at Dickinson State University in Dickinson and I am an expert in development economics. I usually feel cold. My previous job was casino manager I held this position for 30 years, I love talking about softball and crafting. Huge fan of Axl Rose I practice cycling: mountain bike) and collect butterflies.
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