KIPR Archives - Blog | Trademarkmaldives

Delhi HC Restrains Use of Facebake & Other Facebook Formative Trademarks

The Delhi High Court (HC) has permanently restrained the use of marks, including ‘Facecake,’ ‘Facebake,’ Facebook marks, the visual representation of Facebook, and other Facebook formative trademarks of the social media giant, in a Trademark Infringement suit filed by Meta (previously known as Facebook).

Justice Naveen Chawla has awarded nominal damages of Rs. 50,000 against the defendants and in favor of the American multinational technology conglomerate, Meta Inc. The Delhi HC has also directed the defendants to pay the amount of the trademark infringement lawsuit to the plaintiff, Meta.

Meta had moved to the Delhi HC after being aggrieved over the use of the ‘Facebake’ mark by defendant no. 1 Mr. Noufel Malol who was allegedly replicating the visual representation of Facebook by copying its look and feel, font, color scheme, and commercial impression, and was, therefore, deliberately trading off the significant goodwill established in Facebook marks.

The scenario mentioned above came into Meta’s knowledge when it saw the advertisement of the defendant’s Trademark Application in the Trade Marks Journal seeking Trademark Registration for its mark ‘Facebake.’

Meta had also initiated opposition proceedings against the said trademark application, claiming that the defendant’s use of the similar mark infringed upon its statutory and common law rights. It had further claimed that the defendant was involved in dilution, passing off, and unfair competition.

According to Meta, on service of the ad-interim order of injunction, the ‘Facebake’ mark was changed to ‘Facecake,’ which, in turn, was deceptively similar to Meta’s Facebook mark to the same extent.

The Delhi HC, in this matter, said it could never be disputed that Meta’s marks are well-known in India and that their overall reach and user base are pretty evident from the documents and info submitted by it. The Court further observed that Meta has all the trademark registrations in place in various classes of goods and the use of a similar mark undoubtedly amounts to unfair competition, which is and shall always be detrimental to the reputation and distinct character of Meta’s Facebook marks.

The Delhi HC also mentioned that though there is some distinction between Meta’s marks and those of the defendants, the visual representation of the marks adopted by the defendants depicts their mala fide intent in obtaining unfair advantage by using a mark similar to that of Meta. The Court even stated that the same results in dilution of Meta’s marks.

According to the Delhi HC, an unwary consumer might believe that the defendants, in this case, have some connection with Meta. Moreover, the mala fide intent of the defendants is pretty clear from the instance that upon knowing the ad-interim injunction passed by the Delhi HC, they changed their mark from ‘Facebake’ to ‘Facecake’ by changing only one letter but decided not to appear before the Court to defend the lawsuit in question. For more visit: https://www.trademarkmaldives.com

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Does the Use of TM on Google Ads Program as Keyword Constitute Infringement – Delhi HC to Consider!

The question of whether or not a trademark’s use on the Google Ads Program as a keyword would constitute Trademark Infringement is all set to be duly considered by the Delhi High Court.

Justice Prathiba M. Singh will be making a formal judgment on the said question while dealing with a lawsuit filed by Upcurve Business Services Pvt. Ltd., which is a company specializing in the travel business. Upcurve operates a one-stop travel website by the name of ‘udchalo.com’ and has also won several awards.

The lawsuit involved the plaintiff’s (Upcurve) mark ‘udChalo,’ which is registered in Class 39, relating to both online and offline travel arrangements, booking of seats, including air ticketing, flight booking, tours and travels, and so on.

According to the plaintiff, the defendants in the lawsuit include Easy Trip Planners Pvt. Ltd. (EaseMyTrip.com) and HappyFares.in, both of which were accused of using the term ‘udChalo’ as a keyword on the Google Ads Program to attract online users to their respective websites.

After recording Easy Trip Planners’ recording, the Court had earlier passed an order restricting it from using the plaintiff’s trademark as a keyword. Since HappyFares.in wasn’t represented in the Delhi HC, the Court was forced to grant an ad-interim injunction to restrain it from using the plaintiff’s ‘udChalo’ mark as a keyword for promoting its own travel business. Consequently, the Court opined that the use of the mark ‘udChalo’ by HappyFares.in would constitute trademark infringement. The Court noted that since HappyFares.in was involved in the business of travel services, its use of the mark ‘udChalo’ as a keyword to promote its business would be a violation of the plaintiff’s exclusive Trademark Rights.

Concerning whether or not the matter in question would constitute trademark infringement in law and whether or not the use of a trademark as a keyword would constitute a violation of the Trademark Law, the Court has ordered that the same shall be treated as a part-heard.

Last year in November, the Delhi HC had noted that the search engine giant Google couldn’t exonerate itself from taking the liability of making sure that a keyword doesn’t constitute an infringement of a trademark.

Justice V. Kameswar Rao had also observed that permitting individuals who are not the rightful trademark owners to choose or use a keyword that is a Registered Trademark or use some parts of the trademark interspersed with generic words in the Ad-text or Ad-title may constitute trademark infringement or passing off.

Furthermore, the Court had noted that the use of registered trademarks as keywords amounts to ‘use’ in the course of trade in terms of the Indian Trade Marks Act of 1999. For more visit: https://www.trademarkmaldives.com

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South Africa & India Ask EU to Break Silence on the TRIPS Waiver for Covid-19 Vaccines

After several weeks of deadlock, South Africa and India have asked the European Union (EU) to put forward a clear solution and break silence on the TRIPS waiver for Covid-19 vaccines and drugs instead of only blocking the proposal that looks forward to ensuring that people in developing and poor nations are protected from the pandemic.

According to the Indian officials, in recent weeks, the EU has come to the negotiating table to work on a possible way out with various sources in Geneva, hinting that the trading bloc might come around to agreeing to limit the flexibility to patent waiver only for Covid-19 vaccines.

To date, the proposal put forward by India and South Africa has been backed by more than 100 members of the World Trade Organization (WTO). It looks forward to providing copyright, patent, and other Intellectual Property Rights (IPRs) waivers for vaccines, medical devices, and therapeutics.

As of now, the EU has recommended that the vaccine manufacturers who can and are ready to produce the Covid-19 vaccination shots may start producing them without worrying about obtaining Patent Protection.

The WTO secretariat is eager to find an adequate solution way ahead of this month’s ministerial meeting in Geneva, although the details are very much unlikely to be finalized in the coming three weeks. Ngozi Okonjo-Iweala, the Chief at WTO, is eager to deliver a trade and health package at the ministerial meeting and is looking forward to receiving support from different countries, including India, to back the fisheries agreement in return.

The EU, Japan, Switzerland, and the UK are the only nations opposing the proposal and are not even willing to discuss the draft floated by South Africa and India. Also, within the EU, only a handful of nations like Germany are opposing the proposal.

Even though South Africa has its ‘vaccine hub,’ it doesn’t seem to have extracted many benefits from it, keeping aside the mRNA facility fulfilling the requirements of other African nations.

India, on its part, is keen to find a solution to the vaccination issue at the earliest though many officials have claimed that ratcheting up the demand has implied that developed nations, at the minimum, stop blocking the supply of the key inputs and look forward to addressing the major vaccine inequality. Furthermore, India has also got the EU to suggest using the route of compulsory licensing, which enables opting for the patent waiver in the case of national emergencies; and this is something that the developed nations had always opposed.

As per the Government sources, multiple options are being looked at by various developing nations, and some of them may go ahead with the compulsory licensing route. For more visit: https://www.trademarkmaldives.com