Comfort Travel is a brand name for the manufacturer of luxury cars by ComfoCar Ltd. The company is based in Japan. It has earned world-wide reputation of producing varieties of luxury cars. It has presence in many countr

CS Professional · Intellectual Property Rights - Laws and Practices · PYQS · December 2019
Comfort Travel is a brand name for the manufacturer of luxury cars by ComfoCar Ltd. The company is based in Japan. It has earned world-wide reputation of producing varieties of luxury cars. It has presence in many countries across the world. In India it has acquired registration in different classes of luxury cars for its trade mark "Comfo", "ComfoTrvl" and "Comfo Device" during the years 1989-2003. It launched the world-wide world's first commercial hybrid car called "Deception" in Japan in the year 1997 and in other countries like UK, Australia, the USA etc. during the year 2000-01. The company claims to have registered the trade mark 'Deception' in different countries as early as the year 1990 (in Japan) and in other jurisdictions around the world. In India the car was released in the year 2009 and till then the company had not registered the mark in India. It plans to enter in the Indian market in the year 2008 with new luxury car. The Company discover that the Company ZZZ had not only got the "deception" registered in India way back in the year 2002-03 for all types of auto parts and accessories but they had also been using the said trade mark in carrying out trade in such auto parts and accessories. The first party or plaintiff therefore approached the trade mark registry for cancellation of the registered trade mark of the defendant and also filed the suit in the court questioning the other party's using the well-known trade mark of the first party without their authorisation and taking unfair advantage of the reputation and goodwill of the first party earned over a period of time across the globe. Plaintiff prayed for permanent injunction restraining the defendant from using the plaintiff's registered trade mark and permanent injunction restraining the defendant from using the well known unregistered marks "deception". The defendant replied that the they are using the mark 'Comfo', 'Comfo India' and 'Comfo device' on the packaging materials in which the auto parts manufactured by them are packed for the purpose of item identification and nothing more. Since operating in the same area of industry they are supposed to indicate the cars for which the spare parts have been manufactured by displaying the name on the packaging of the products. Therefore, it is honest use under section 30 and therefore protected under the Act. With regards to the 'Deception' they had registered the mark in year 2002 and continuously using same since the year 2001. They have been regularly supplying the auto accessories to various automobiles giants. By the time they have acquired market reputation for the mark and their services. Since they are operating in India from a time when the plaintiff has not established the product, therefore they are entitle to have the trade mark in their favour. In the background of the above facts, analyse the following issues: What is the nature of Intellectual Property Rights in general and trade mark in particular the territorial or international or both ?

Answer & Explanation:

Intellectual property rights are like any other property right. They allow the creators or owners of patents, trademarks or copyright to get benefited from their own work or investment in a creation. An efficient and equitable intellectual property system can help all countries to realize intellectual property's potential as a catalyst for economic development and social and cultural well-being. The intellectual property system helps strike a balance between the interests of innovators and the public interest, providing an environment in which creativity and invention can flourish, for the benefit of all. Countries have laws to protect intellectual property for two main reasons. One is to give statutory expression to the moral and economic rights of creators in their creations and such rights of the public in access to those creations. The second is to promote creativity, dissemination and application of its results and to encourage fair trading thereby leading to economic and social development. A trade mark provides protection to the owner of the mark by ensuring the exclusive right to use it, or to authorize another to use the same in return for payment. The period of protection varies, but a trademark can be renewed indefinitely beyond the time limit on payment of additional fees. In a larger sense, trade marks promote enterprise approach worldwide by rewarding the owners of trademarks with recognition and financial profits. Trade mark protection also prevents the unfair competitors, such as counterfeiters from using similar distinctive signs to market inferior or different products or services. The system enables people with skill and enterprise to produce and market goods and services in the fairest possible conditions, thereby facilitating international trade. With the advent of WTO, the law of trade marks is now modernized under the Trade Marks Act of 1999 and is in harmony with two major international treaties on the subject, namely, The Paris Convention for Protection of Industrial Property and TRIPS Agreement. Intellectual Property is developed under the territorial concept of Intellectual Property Rights. The State defined and recognised the rights of the stakeholder. The rights were applied and enforced within the jurisdiction of State. Therefore, it is known as territorial right. However, with the development of international conventions new intellectual property rights were recognised. It provided unification to the concept and principles relating to intellectual property rights. However, it did not change the nature of intellectual property rights. The rights are legislated by the State to be enforced within the boundaries of the State. Therefore the nature of Intellectual Property Rights irrespective of international development remains territorial in nature.

Topics: Trade Marks

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