Rise of Social Media: Potential Risks of Trademark Infringement

Trademark; Meaning and need of laws

Trademark infringement is the unauthorized use of a trademark which is one of the various ways in which intellectual property rights are violated. In layman, language trademark is a sign that assists distinguish the product of a particular firm from the products of other firms of similar nature. The evolution and development of trademark law protect the right of manufacturers or sellers but the advancement of technology and the emergence of social media has bound lawmakers and interpreters to make a continuous intervention and take a comprehensive vigil over the various new issues related to trademark infringement. The upsurge of social media apps and their intervention in our lives have completely changed the marketing game for every business organization. Today, social networking and social media are becoming significant and considerable factors to make business strategies, particularly for marketing for all enterprises. However, the protection of a trademark has always been important for a firm since it is closely associated with the identification of a product but in the present scenario of social media culture, the risk of trademark infringement has increased to a large extent.

Different kinds of misuse, unauthorized use, and infringement of trademarks are:

  1. Brand Protection
  2. Hashtag and trademarks
  3. Parody and trademark
  4. Disparagement of product
  1. Hashtag and Trademark

It is using of the ‘#’ sign before any word or phrase on social media platforms to make it easily accessible for the user as it restricts the search results to that exact phrase with a # sign.

Section 2(1) (m) of the Trade Marks Act of 19993, (hereinafter the Act) states “that “mark” includes, “a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof.” In the case of hashtags, section 2(1) (zb) of the act4, states clearly that to be a hashtag, a mark must be able for graphical representation and it must distinguish one firm’s product from those of another.

  1. Brand Protection

It is about online trademark infringement that primarily includes offering counterfeit goods on online selling platforms such as Amazon, Flipkart, and others. It also involves deep linking and Meta tagging to exploit the unfair advantage of brand-name or goodwill of the company.

  1. Parody and Trademarks

Parody is said to be an imitation of the work of some person with a consideration to criticize or ridicule it. There have been cases where even in the case of parody the imitator is found to be guilty of infringement of the trademark.

  1. Disparagement of Product: Advertising plays an important role in communicating with prospective and existing customers and thereby raising the sales of the firm. Sometimes business firms implement unethical practices to affect their competitor’s reputations through disparagement which is about making false claims or remarks about a competitor. Disparagement is prohibited under Indian law. In India, section 29 of the Trademarks Act 19995, which deals with comparative advertising, states,

“A registered trademark is infringed by any advertising of that trademark if such advertising—

(a) Takes unfair advantage of and is contrary to honest practices in industrial or commercial matters; or

(b) is detrimental to its distinctive character; or

(c) is against the reputation of the trademark”.

In this way, an advertisement stating misleading facts about a competitor’s goods is considered disparagement and a trademark infringement.

To make it more precise Section 30 (1) of the Trademarks Act 19996, restricts the use of comparative advertising under Section 29. It says that the competitor’s mark must be used honestly. In this way, comparative advertising can be permitted if it does not create an adverse effect on the reputation of the competitor’s product.


Trademark[Image Sources : Shutterstock]

In the case of Euroke Forbes Ltd. v. Pentair Water India Pvt. Ltd 7, the plaintiff claimed a permanent injunction that prohibited the defendant from publishing, advertising, or distributing any material which will defame or malign the plaintiff’s product since it was a matter of disparagement. The plaintiff in this case is a prominent water purifier firm that purifies the water using UV rays. The defendant company, which is also in the water purifier industry, ran the following advertisement:

“Water contains some type of contaminants which are invisible to both the naked eye and to your UV water purifier.”

In this case, the court decided that, even though the defendants did not mention the plaintiff’s firm name directly, the advertisement amounted to the disparagement of the plaintiff’s products since the plaintiff used UV rays technology. In this instance, the court said that though the respondent has every right to market its product by claiming that its product is superior in quality, yet, at the same time, the freedom of expression i.e., the right to advertise, does not allow to go to this extent, causing damage or irreparable injury to the product of others. Just because the respondent has every right to market its product by stating that its products are of superior quality over others, yet, it cannot go to the extent of stating that the contaminants are invisible even to UV water purifiers.

Thus, Comparative advertising is permitted and, in certain scenarios promoted in India. It enables customers to understand the similarities and differences between two competing products and rationalize when choosing a product that meets their needs or desires. At the same time, the law makes it illegal to criticize a rival’s product for earning monetary benefits in an unethical manner. Thus, the ultimate goal of comparison advertising is to help consumers in making wise and smart decisions by giving accurate information about two similar items. Disparagement is also rampant in the virtual sphere. Social networking sites are a common platform for disparaging advertisements that try to demean each other products. There is an immediate need to stop this due to the virtual world’s significant impact.

Conclusion

Undoubtedly, Social media has transformed our lives. Since the way of our life has changed, business organizations are bound to change their strategies accordingly. New ways of promotion and selling have brought new challenges and potential risks to the Intellectual property rights and therefore, persistent efforts to safeguard the laws in new market culture is need of the hour. In this new dynamic business environment emergence of new aspects, new issues and unexplored dimensions are anticipated and hence laws are to be kept updated and comprehensive to meet all expectations.

Author: Sahil Dhanwani, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at IIPRD. 

Leave a Reply

Your email address will not be published.

fifteen + 2 =

Archives

  • January 2023
  • December 2022
  • November 2022
  • October 2022
  • September 2022
  • August 2022
  • July 2022
  • June 2022
  • May 2022
  • April 2022
  • March 2022
  • February 2022
  • January 2022
  • December 2021
  • November 2021
  • October 2021
  • September 2021
  • August 2021
  • July 2021
  • June 2021
  • May 2021
  • April 2021
  • March 2021
  • February 2021
  • January 2021
  • December 2020
  • November 2020
  • October 2020
  • September 2020
  • August 2020
  • July 2020
  • June 2020
  • May 2020
  • April 2020
  • March 2020
  • February 2020
  • January 2020
  • December 2019
  • November 2019
  • October 2019
  • September 2019
  • August 2019
  • July 2019
  • June 2019
  • May 2019
  • April 2019
  • March 2019
  • February 2019
  • January 2019
  • December 2018
  • November 2018
  • October 2018
  • September 2018
  • August 2018
  • July 2018
  • June 2018
  • May 2018
  • April 2018
  • March 2018
  • February 2018
  • January 2018
  • December 2017
  • November 2017
  • October 2017
  • September 2017
  • August 2017
  • July 2017
  • June 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • December 2016
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • July 2016
  • June 2016
  • May 2016
  • April 2016
  • March 2016
  • February 2016
  • January 2016
  • December 2015
  • November 2015
  • October 2015
  • September 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • June 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
  • November 2013
  • October 2013
  • September 2013
  • August 2013
  • July 2013
  • June 2013
  • May 2013
  • April 2013
  • March 2013
  • February 2013
  • January 2013
  • December 2012
  • November 2012
  • September 2012
  • August 2012
  • July 2012
  • June 2012
  • May 2012
  • April 2012
  • March 2012
  • February 2012
  • January 2012
  • December 2011
  • November 2011
  • October 2011
  • September 2011
  • August 2011
  • July 2011
  • June 2011
  • May 2011
  • April 2011
  • March 2011
  • February 2011
  • January 2011
  • December 2010
  • September 2010
  • July 2010
  • June 2010
  • May 2010
  • April 2010