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A description of the basic aspects of Orthodox Christian spirituality from the Russian tradition.
Aspects of EVOCATION COLLECTED ESSAYS BY PHIL HINE Credits & Acknowledgements Firstly to Arawyn, for bugging me to put something together for the Zee-CD project. Also to Stephen Sennitt, ...Full description
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the main aspects of the Victorian novelDescripción completa
Aspects of Infringement under the Trademarks Act 1999
Trademark
WHAT ? [Section 2(zb)]
Represented graphically; AND Distinguishing goods and services; AND May include shape of goods, their packaging and combination of colours
WHY?
Trade source Quality of Goods Graphical representation of the “BRAND” of a company
Infringement
Broadly means taking unfair advantage or being detrimental to the distinctive character reputation of a trademark Section 29
1. Registered marks [for similar goods & services] 2. Registered marks with reputation [for disimilar goods and services]
Aspects of Infringement
Section 27(2)- Passing Off Section 29(1)- General Section 29(2)- Specific Section 29(4)- Dilution Sections 29(5),(6),(7),(8),(9)Others
…contd
Conditions to fulfill for causing infringement under 29(2)
1. Mark used either identical to or deceptively similar to the registered TM 2. The goods it is used for is specifically covered by registration 3. The use of the mark is in course of trade in areas covered by registration 4. The use is in such manner as to render it likely to be taken as being used as a trademark
….contd. Marks covered under Section29(2) 1. Identical TM- Similar goods and services 2. Similar TM-Identical or Similar goods and services 3. Identical TM- Identical goods and services
Consumer oriented Likely to cause confusion/deceptively similar Courts presume likely to cause confusion in case of (3) above
Dilution
Conditions to fulfill for causing infringement under Section 29(4)
1. 2. 3. 4.
Identical with or similar to the injured TM Injured mark has reputation in India Use of the injured mark is without due cause Use takes unfair advantage of, or is detrimental to the distinctive character or reputation of the injured mark
Producer Oriented
Dilution contd.
“Likelihood of confusion test does not hold good anymore”
Hamdard National Foundation v. Abdul Jalil 2008(38)PTC109(Del)-Court stuck to the likelihood of confusion or deception test. Ford Motor v. Mrs. C.R. Borman 2008(2)CTMR474(Del.)(DB) Plaintiffs do not have to prove deception if reputation is proven ITC Ltd. v. Phillip Morris Products SA& Ors2010(42)PTC572(Del.) Landmark The Courts held1. Deceptively similar standard has been consciously eschewed by Parliament for 29(4) 2. Should be near identification of two marks- “closest similarity” 3. Other elements that make up for Dilution as in 29(4)
Dilution contd….
1. 2.
3. 4.
What the confusion is? Raymond Ltd. v. Raymond Pharma2010(44)PTC 25(Bom)(DB) Whether section refers to well known trademarks? Use of the term “well known TMs” in prosecution proceedings under section 11(2) and use of “reputation in India” in enforcement proceedings mentioned under Section 29(4) Conflict between Sections 11 and 29(4)? Most infringement proceedings have used “well known trade marks” Tata sons ltd. v. Manoj Dodia 2011(46)PTC(Del.)
Dilution contd.
1. 2.
3.
Tata sons ltd. v. Manoj Dodia 2011(46)PTC(Del.) Use of well known TM might not cause confusion to the source, but damage reputation Using another persons Well known TM – taking advantage of the goodwill-constitutes unfair competition Dilution occurs when a well known trade mark loses its ability to be uniquely and distinctively identify and distinguish
Passing Off
Ingredients
1. 2. 3.
Goodwill Misrepresentation Damages
Underlying Principle
1.
Trading must not only be honest but not even unintentionally be dishonest Protecting Commercial Goodwill Purchasers not exploited
2. 3.
Passing off contd…..
1. 2. 3. 4. 5.
Cadilla Healthcare v.Cadila Pharmaceuticals. AIR 2001 SC 1952 Five elementsA misrepresentation Made by a trader in course of trade To prospective customers of his or her ultimate consumers of goods or services supplied by him Which is calculated to injure business or goodwill of another trader (reasonable foreseeable consequence) Which causes actual damage to a business or goodwill of the trader by whom the action is brought or will probably do so.
Passing Off contd
Deception heart of passing off Dilution a consequnce Bata India Ltd. v Pyarelal AIR1985 All 242 well known markfancy name-likely to cause injury to plaintiff- likelihood of deception of BATAFOAM Daimler Benz v. Hybo Hindustan AIR 1994 Del 239 Likelihood of deception not considered-injunction granted only on the grounds of free riding- dilution and passing off overlap Kirloskar Diesel v. Kirloskar proprietory AIR 1996 BOm 149 aim of PO to protect erosion of goodwill Honda Motors v. Chiranjit Singh 2004(26)PTC 1 (Del) HONDA being of global reputation- deception and dilution of goodwill AND reputation
Passing off contd.
Reputation v. Goodwill
1. Not a property 2. Without existence of business 3. Reputation can exist without goodwill
Legal Property Existence of business Goodwill only with reputation
Difference Infg.
Dilution
PO
1.
Similarity of TM
closest similarity
2. 3. 4.
Regd TM No goodwill/rep Similar/identical G&S
Regd TM Reputation Dissimilar G&S
likelihood of confusion Unregd/regd. Goodwill misrep imp
