by Harsh Rai
ABSTRACT
Despite the fact that Copyright and Trademark systems sound similar in attribute they have a whole different sphere of operations. The variances are considerably larger than the similarities among them. The basic factor in which the law governing each of the systems is designed to address the specific facets of their respective fields of rights and relationships, as are laws enacting negotiable tools to deal with bills and notes, as are sales laws to deal with relationships resulting from the acquisition and sale of personal property.
In the restricted scope of this Article, it would be unrealistic, if not impossible, either to attempt to trace each of those areas of law’s history, beginnings and ways of developing it or to offer a thorough review of the individual statutes and other regulations governing its application. Even at the risk of over-simplification, some of its essential features, some noteworthy parallels and differences, and certain sectors in which they intersect can be more useful to investigate. INTRODUCTION:
The system of copyright addresses the contents of the articles. It addresses the transmission of information, ideas and expressions when they have been reduced to a certain tangible form that can be viewed and reproduced by a reader or viewer. ¹ Products like as books, plays, music, journals, magazines, images, films, and three-dimensional works of art are part of the copyright system. They are sometimes referred to as literary, artistic and research works under the idea of “writing by an author,” and the private interest in their content is diversely referred to as literary or intellectual property.
The purpose of Copyright Law is to encourage the development and dissemination of this content, enabling writers to profit from their work and the industry[i]. The copyright system guarantees that the substance of these works is widely communicated by allowing the physical embodiment of these works to be distributed without losing dominance over the intellectual property contained within[ii]. In unpublished works, the copyright and common law regulations for literary property consist of a copyright system, which protects such property from invasion.
Unlike copyright, frequently called intellectual property, trademarks and patents are sometimes classed as industrial property, as mentioned above. If the distinction is not regarded too literally there’s a degree of reason because of the main area in which trademarks and patents play their leading role. The function is the sector that we generally call, trade and industry.
The legislation on trademarks does not deal with the contents but the identifying function, they deal with words, symbols, sounds and pictures as well. The aim of a trademark is not to define a product or to transmit information but is to relate the product with the manufacturer or distributor or with a set of items of the same or common source. The items may range from vehicles, razor blades, cigarettes and home appliances, although, these things may not be described or told by a trademark. A trademark is meant to “pack a bell” to use a colloquial term so that the buyer may pick a branded object over an item of the same or similar sort. A trademark’s role is twice as much. It is designed, on the one hand, to promote and protect the goodwill of its owner whose profits are obtained by the sale and, on the other hand, by preventing uncertainty regarding the source or identity of such items, to safeguard the buying public. Consequently, the trademark system has been intended to achieve these outcomes by focusing on the utility as a mark or comparable method of identification, not on the substance of the mark or its intrinsic literary or creative quality.
A COMPARATIVE VIEW ON COPYRIGHT AND TRADEMARK INFRINGEMENT:
Infringement of copyright shall be without the consent of the copyright holder the use or creation of copyright-protected content. Infringement of copyright implies that a third party infringes upon the copyright holder’s rights, such as exclusive use of a work for a certain period of time. Music and films are two of the most popular types of entertainment with substantial copyright violations[iii]. Cases of violation might lead to contingent obligations, which, for potential proceedings, are reserved for sums. In order to ensure that their work can benefit, owners produce new work and get copyright protection. The Owner may either sell or lease his work to a third party who may use its work, however, but if the copyrighted Owner’s work is reproduced or reproduced without the latter’s consent, it may result in a violation of copyright by the Owner of the work against the Copyright Infractor[iv].
The cardinal stumbling block regards to trademark Infringement is creating confusion in the minds of customers in resemblance to the product. “Is one symbol so near to another that it is possible that an average buyer is misled, misguided, or fooled about the source of the products or service?” “The courts would want to make a judgement on the violation to know what the client thinks about, how he reacts to the two markings and thus if he is likely to be tricked. While in most cases the main problem of trademark infringement has been consumer confusion, there are two alternative types of misunderstanding that deal with commerce rather than the consumer public, namely trade confusion and ‘Passing over’”. Proof of trade confusion in infringement cases has been thought to be highly useful, as the trade members are not likely to be as quickly misled or confused as the ordinary consumer[v]. Pieces of evidence of “passing off” when a trader actively and consciously tries to distribute one product as another are also valuable in the law infringement.
STATUTORY PROVISIONS:
Infringement of trademarks is specified under the “Section 29(8), Trademarks Act, 1999”[vi], In this section, when a marketer utilises the mark of the rival to create a comparison to dismiss them, this act generates not only questions connected to comparative advertising but also trademark violations.
At the same time, however, the exemption is provided for under “Section 30(1) of The Trademark Act, 1999”[vii]. Under this section, the use of the trademark of another trader is not a violation if it follows honest practises and fails to take any unfair advantage of a comparable trademark nor is it harmful to the distinctive or reputation of that trademark.
EXCEPTION TO INFRINGEMENT:
“Section-52, The Copyright Act, 1957”[viii] states:
- If the content is for personal use or private study, or even including research.
- Providing review, or criticism to the work in question or any other work.
- Current event and current affairs reporting, including a public lecture reporting.
REMEDIES FOR THE INFRINGEMENT:
In accordance with Copyright:
- Civil remedy: In accordance with “Section 55, The Copyright Act, 1957”[ix], if copyright infringes any work, the copyright owner shall have the right via injunction, damages and accounts to all such remedies.
- Criminal Remedy: Under “Section 63 of the Copyright Act, 1957”, the holder of the copyright can act against the offender, in which the provision may extend to at least three years of imprisonment and a fine of Rs. 50,000, which might increase to 2 lakhs, of a minimum of six months imprisonment[x].
In the event that the defendant proves that he did not know at the date of the infringement and had no reasonable ground for believing that copyright existed in the proceedings, the plaintiff shall, in the circumstances deemed reasonable, be not entitled to any remedy for any of the defendant’s profits made in the sale of infringing copies[xi].
In accordance with Trademark:
1. Monetary Compensation: Monetary compensation is the traditional legal remedy in any kind of dispute. Monetary damages are a type of legal remedy in situations of trademark infringement, which an affected plaintiff might seek. Claimants may seek real damages (e.g. lost sales), the profits of the defendant from the use of the infringed trademark, as well as costs (see the lawyer’s fee below). Claimants may also apply for punitive damages in accordance with state legislation in various countries[xii].
2. Court Ordered Injunction: Complainants may apply for an order of the Court requiring the violator to halt all infringement actions, including the use of the infringing trademark. The injunction could force an infringement to halt immediately all sales of infringing goods, or to require that the infringing product cease to be sold when a reasonable sales period has ended. Injunctions can be either provisional or permanent in nature. Orders in terms of geographical scope may likewise be limited.
3. Forfeiture or Destruction of Goods: The claimants can also request the court to give an order requiring the violator to declare the infringing products to be cancelled or destroyed. This order might provide the defendant with a certain term in which the infringing items should be produced/forfeited or destroyed.
4. Payment of Plaintiff’s Attorney Expenses: In rare instances, in addition to any other remedy, it may be proper for the claimant to apply for and get reimbursement by the defendant for their attorneys’ fees.
REAL-WORLD INSTANCES OF INFRINGEMENTS:
By developing internet portals for the sharing of music like Napster, the music business was attracted to attention.
“A&M RECORDS, INC., et al v. NAPSTER, INC”
Napster was a website for online music, enabling peer-to-peer file sharing over its networks. Customers would exchange or distribute music free of charge from different artists. Napster was sued and won for a copyright violation by recording firms in the music business for protecting their intellectual property[xiii]. Napster was determined to be in breach of the copyright rules since, in part, it knew of and did not do enough to prohibit the widespread distribution. The music was also duplicated and utilised, financially harming record firms and the selling of their songs by customers. Napster has also been proven to have benefited financially from the copying and dissemination of music at the cost of record labels.
“Yahoo Inc. v. Akash Arora and Anr.”
Maybe the first of India’s most important judgments against cyber-squatting. The High Court in Delhi held a domain name registered comparable to a trademark which gave it the right to equal protection for the first time. In this case, the defendant was ‘Yahoo India!.’ Their domain name was protected. Now, the mark of the plaintiff, “Yahoo,” was identical and even phonetically identical.
The Court thought that people would be taught that both the domains have the same source. They thought. In this case, the defendant said he had placed a notice on the website expressing the same thing. However, because the Internet nature makes it impossible to correct the domain name merely by making a disclosure, the court did not approve of the disclaimer[xiv].
CONCLUSION:
From the above research, it can be concluded that the common law phase has its roots both in copyright and in trademarks. Under the dual copyright system, unpublished works not reproduced in copies to be sold or distributed to the general public are protected under literary property doctrines of the common law. Once published, the works lose their complete protection unless if the provisions of the federal copyright law are taken in order to comply. In India, there are provisions such as “The Copyright Act, 1957”, and “The Trademark Act, 1999” that provide safeguards to such infringements and assure the remedy given under the statute. Indian Judiciary plays a very important role in such matters of disparagement and provides fair and equitable justice.
[i] David L. Hudson Jr., Copyright & The First Amendment, FREEDOM FOREIGN INSTITUTE (Aug. 05, 2004), https://www.freedomforuminstitute.org/2004/08/05/copyright-the-first-amendment/.
[ii] UNITED STATES COPYRIGHT OFFICE A BRIEF INTRODUCTION AND HISTORY, https://www.copyright.gov/circs/circ1a.html (last visited July 07, 2021).
[iii] Will Kenton, Copyright Infringement, INVESTOPEDIA (June 12, 2020), https://www.investopedia.com/terms/c/copyright-infringement.asp.
[iv] Diganth Raj Sehgal, Copyright Infringement, IPLEADERS (Aug. 22, 2019), https://blog.ipleaders.in/copyright-infringement/.
[v] Sujay Dixit, Comparative Advertisement & Infringement of Trademark, LEGAL SERVICES INDIA (last visited July 08, 2021), https://www.legalservicesindia.com/article/604/Comparative-Advertisement-&-Infringement-of-Trademark.html.
[vi]The Trade Marks Act, 1999, s. 52, No. 47, Acts of Parliament, 1999 (India).
[vii] Id. at s. 30(1).
[viii] The Copyright Act, 1957, s. 52, No. 14, Acts Of Parliament, 1957 (India).
[ix] Id. at s.55.
[x] COPYRIGHT, supra note III, at s.63.
[xi] Parul Shrivastava, Copyright Infringement, MONDAQ (June 16, 2020), https://www.mondaq.com/india/copyright/953334/copyright-infringement.
[xii] Olusola Jegede, Trademark Infringement In Nigeria And Legal Remedie, MONDAQ (Nov. 18, 2020), https://www.mondaq.com/nigeria/trademark/1006792/trademark-infringement-in-nigeria-and-legal-remedies.
[xiii] A&M RECORDS, INC., et al v. NAPSTER, INC., NOS. 00-16401 & 00-16403.
[xiv] Yahoo Inc. v. Akash Arora and Anr., 1999 IIAD Delhi 229.
[xv] Picture: Web solutions Inc.
PROLAWFIC 