Balancing Trademark Protection in the Digital Environment

ABSTRACT

Patents, trademarks, copyright, licensed design rights are all examples of intellectual property. Some types of intellectual property are also available for free. This article talks about trademark protection in digital environment. Understanding how to recognise the intellectual property, secure it, and use it to its maximum extent can be immensely beneficial. Whatever your aims are, intellectual property will assist you in achieving them. From that viewpoint, it’s important to be conscious of and comprehend the different types of intellectual property and how they can work for or against you.

Keywords: Intellectual Property Right, Digital Society, Trademarks, Copyright

INTRODUCTION

The most critical aspect of modern business is intellectual property.  It promotes healthy market competitiveness, allowing manufacturers and traders to more successfully produce their goods. Thus, trademark protection is a significant issue to explore.

The ownership of intangible assets is referred to as intellectual property. It also applies to online-downloadable digital media such as audio and video clips. Since intellectual property is intangible, it can be difficult to recover if it is stolen.[1] The word intellect derives from the Latin root “intellectus”which means the power of knowing as distinguished from the power to feel.[2] An intellectual product is nothing more than the result of his original idea, creative thinking, and it is this type of property that is referred to as intellectual property.[3]

The World Intellectual Property Organization’s (WIPO) defines a trademark as “Any sign that individualizes the goods of a given enterprise and distinguishes them from the goods of its competitors”.[4]

Perspective under Indian and International Scenario

The dissemination of copyrighted content on the internet has resulted in a major improvement in the pre-existing rules due to developments in digital technology. To address these concerns, a number of technical and legal steps have been introduced, including the development of tools such as encryption, digitization, and watermarking, as well as the framing of numerous international treaties and agreements.[5]

The Indian Copyright Act, tends to be successful in addressing issues concerning infringements in the digital domain. As a result, there is controversy as to whether India should sign the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty, and the matter is still under consideration by the Indian government.[6]

The Indian Copyright Act was passed in 1957 to address the problem and to restrict the use of copyrighted content. It went into effect on January 21, 1958. Since then, numerous changes have been made, most recently in 2012, to satisfy national and international criteria. Several international treaties have been drafted to govern the usage of copyrighted materials, including the scope of use, restrictions, and exceptions. Apart from several other bodies, the World Intellectual Property Organization (WIPO) oversees these international copyright treaties.

Multilateral treaties and agreements such as the Paris Convention, the Madrid Agreement and the Madrid Protocol, TRIPS, the Vienna Agreement Establishing an International Classification of the Figurative Elements of Marks, the Trademark Law Treaty, the Nice Agreement on International Classification, and the Singapore Treaty on the Law of Trademarks which are international instruments for protection of trade mark worldwide have been signed to balance trademark protection in digital environment.[7]

In India, both civil and criminal remedies are available for trademark infringement. The Court can grant relief in any suit for infringement or passing off for injunction; either damages or an account of profits, with or without an order for delivery up of the infringing labels and marks for destruction or erasure, under Section 135 of the Trade Marks Act, 1999. The Trade Marks Act of 1999 also allows for criminal prosecution of trademark infringers. Under various provisions of the Indian Penal Code, 1860, a person who infringes on an unregistered mark can be prosecuted criminally.[8]

Summary of Leading Cases with Important Issue

The case of The Coca-Cola Company v. Bisleri International Pvt. Ltd[9]. clearly demonstrates trademark infringement. The precedent in question concerned infringement of the trademark “MAAZA,” in which there was an agreement for the assignment of the name for the drink known as “MAAZA.” The court issued an interim injunction prohibiting Defendant from using the mark in India and for export.

The case of Yahoo!, Inc. v. Akash Arora &Anr[10] was the first landmark decision on cybersquatting. For the first time in India, the Delhi High Court ruled that a domain name serves the same role as a trademark and is entitled to the same degree of protection.

The case of Bigtree Entertainment Pvt. Ltd. v. D. Sharma and Anr[11]dealt with whether the word “BOOKMY” has gained an exclusive definition, and whether the plaintiff has exclusive rights to it. The plaintiff’s appeal for an injunction was dismissed by the court. The plaintiff’s mark “BOOKMYSHOW” has not gained exclusivity.

In the case of Crocs Inc. v. Bata India Ltd. and Others[12] the plaintiff was unsuccessful in a design infringement suit because the designs on which the suit was filed were found to be not new or original, so he requested an injunction on the grounds of passing off, which is a common law action.

CONCLUSION

Infringement has become a major problem in recent years, particularly when it comes to trademark protection in the digital realm. To conclude, this research article addresses what intellectual property rights and the concept of trademark means. It also sheds light on various remedies and the international treaties that are available to address the challenges for these issues and to solve these problems along with leading case laws for the same. Even though many technological strategies have been developed to regulate the illicit use of digital content, there is still a crucial need for well-trained police forces who can detect infringement, avoid it, and enforce legal security.

REFERENCES

  1. https://www.computerweekly.com/opinion/Protecting-your-intellectual-property-in-a-digital-world.
  2. https://www.mondaq.com/unitedstates/trademark/815846/trademark-protection-in-the-digital-age-protecting-trademarks-from-cybersquatting.
  3. https://www.merriam-webster.com/dictionary/intellect
  4. https://www.wipo.int/trademarks/en/ (last visited Mar 1, 2021).
  5. https://ssrn.com/abstract=741424

[1] Chattopadhyay, Sougata. (2013). Intellectual Property Rights in Digital Environment.

[2] “intellect,” Merriam-Webster.com Dictionary

[3] Chattopadhyay,Intellectual Property Rights in Digital Environment.

[4] WIPO, WIPO Intellectual Property Handbook (2 ed. 2008).

[5]Juhi Saraswat & Rekha Chaturvedi, Copyright Protection in the Digital Environment: Indian Perspective and International Obligations , 22 Journal of Intellectual Property Rights 303–310 (2017).

[6]Ibid.

[7] NIDHI BUCH, INTERNATIONAL INSTRUMENTS RELATING TO TRADEMARK: BROADENING THE HORIZONS OF PROTECTION, 3 JOURNAL OF LEGAL STUDIES AND RESEARCH (2017).

[8] Trademark Misuse Infringement India, S.S Rana & Co (2021), https://ssrana.in/ip-laws/trademarks/trademark-misuse-infringement-india/ (last visited Mar 1, 2021).

[9] [Manu/DE/2698/2009]

[10] 1999 PTC (19) 201 (Delhi)

[11] 2019(77)  PTC  411(DEL)

[12] 2019 SCC  OnLine Del 6808

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