Contours Of Trademark Infringement- Need For Addressing The Post-Sale Confusion
- IJLLR Journal
- 7 hours ago
- 2 min read
Ayushi Lakshmi Verma, Practicing Advocate at Patna High Court*
INTRODUCTION
Imagine walking down the streets and you come across a person wearing shoes with the brand logo of Nike except that the shoes look of an inferior quality and you wonder that the brand is no longer producing shoes of a good quality. Such a perception may cause you to think twice before going to purchase a pair of Nike shoes or you would dissuade a prospective buyer from purchasing shoes of that brand. Would such a perception of a brand based on the appearance of the brand’s logo on an unrelated pair of shoes amount to trademark infringement? Before we approach this question it is pertinent to discuss the relevance of trademark and the reason behind why a ‘mark’ required legal protection in the first instance.
NEED FOR TRADEMARK PROTECTION
The entire corpus of intellectual property law rests on the edifice that creations of an individual’s mind emanating from his/her idea and unique thought process deserve protection and that the individual is the sole authority to exploit the proceeds and gains from such creation.
The idea of putting a ‘mark’ in order to differentiate ones products from another’s has been going on since ages. Take for example, the seals of the Indus Valley Civilization. The different seals found have different signs on them which historians believe were personal identifiers used to indicate a trading group or a class. Seals have been considered as precursors to what we now call ‘labels’ and these seals have existed in all known civilizations across all ages.
WIPO defines ‘trademark’ as a “sign capable of distinguishing the goods or services of one enterprise from those of other enterprises.” The sign serves as a proof of origin of that particular good or service for the customers. Another essential function which a trademark serves is that it speaks for the quality of the goods. The presence of a sign makes an ‘average customer’ believe that the goods are a product of a certain company and of a particular quality and if such company has the market goodwill it will encourage the customers to purchase those goods.
