INTRODUCTION
Intellectual property rights permit people to maintain ownership rights of their innovative product and creative activity. It is the part of intellectual property Rights, that helps to protect your brand by Distinguish if from competitor. A “well-known trademark” is a special logo or name that many people recognize and associate with certain products or services. If this logo or name is used for different products or services, people might think there’s a link between those new things and the company that uses the well-known trademark for its original products or services.
•WELL- KNOWN TRADE Mark:
Well known Trademark is mark which has become so to the substantial segment of the public. It is defined under Section 2(1) (zg) of the Trademark Act, 1999. “well – known trade mark”, in relation to any goods or services, means a mark which has become so to the substantial segment of the public which uses such goods or receives such services that the use of such mark in relation to other goods or services would be likely to be taken as indicating a connection in the course of trade or rendering of services between those goods or services and a person using the mark in relation to the first-mentioned goods or services.
• Factors to be considered for determination of well-known Trademark:
Section 11(6) of the Trademark Act,1999 deals with the factors to be considered for determination of well-known Trademark.
- knowledge and Reputation: it mean substantial section of population must known of it. or acknowledgement by the population.
CASE: Canon Kabushiki Kaisha v. Assistant Registrar of Trademarks,
It was held that even if a trademark is well known in a particular area or section of India, then it would be considered to be well known in the entire country.
- Extent of promotion: well known Trademark will be extent of promotion; it means if general public is aware of particular mark which are not registered in particular countries and another country violate then will protect under well known Trademark.
- Terms of use: Terms of use can’t be the role & only criteria but other significant also be counted.
CASE: Mrs. Ishi Khosla v. Anil Aggarwal 2007 (34) PTC 370 Del],
It was held by Delhi High Court that the trademark of a product can be a hit amongst the public overnight too depending upon the demand and advertisement of the product. Hence a certain period of use is not needed.
- Record of Successful enforcement: Record of Successful enforcement is must be necessary in the case of Well-known Trademark.
• Related case laws:
Daimler Benz v. Hybo Hindustan AIR 1994 Del 2369
Plaintiff logo: – Three-pointed star in a ring
Defendant logo: – ‘Three-pointed human being in a ring’ with words ‘VIP Benz’ for his business of undergarments.
Holding: – Defendant was restrained by an injunction from using that logo.
Rationale: – The logo and the word Benz have for a long time been associated with Mercedes Benz.
Even a person having very little knowledge of the cars will be able to associate the word Benz and the logo with luxury car manufacturer Mercedes Benz.
Therefore, it is a well-known trademark. Injunction was granted.
McDonalds’ Case:
McDonalds didn’t register its trademark in South Africa. There was an international boycott of South Africa.
Another corporation Jo burgers Drive Inn came to the market with business in the same class and sold their products under the name of McDonald’s and Big Mac.
Trial Court- due to no use of McDonald’s trademark in South Africa, the corporation has no remaining exclusive rights in South Africa and hence the product is no longer eligible for protection.
The Appellate Court quashed the decision of the trial court as Section 35 of South African Trademark Act, which is similar to Section 16 (2) of TRIPS provided protection of a well-known trademark, in which knowledge of that particular trademark is the main essential element to term it as well known. It also embraced the rules of TRIPS Agreement that a well-known trademark need not to be known by the entire population of a country but only by a relevant section of the society is sufficient.
Concept of Goodwill: The value inherent in achieving consumer loyalty to a particular product or service through the maintenance of consistent quality of the products or services offered under a mark is called goodwill.
Conclusion:
Well known Trademark is mark which are not registered in every countries but it is very generic and people are aware of that mark existence and it will be protected under Trademark Act,1999.
Author : Vandana Kumari, a Student of GAUTAM BUDDHA UNIVERSITY
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