 who is known for the methods in which she teaches us the nuances of law of trademarks. And though it, we quite often say that we made a request to the resource person and she had, he or she had acceded to our request and same way, Dr. Nidhi Bhoj was also kind enough to accede to our request. Since we thought that first let's have a bird eye view of the law of trademarks and we had already shared on the platform as to how we would go upon the six basic sub-agendas in this session. And without taking much time, I would request Dr. Nidhi Bhoj to take things forward and start sharing her thoughts of course with sharing of the screen, which has been allowed to her. What do you mind? Thank you so much. It's indeed a pleasure for me to be on this platform. And before I begin to discuss the subject, which is very interesting, contemporary, ever evolving, I think I, all of you will agree, let us extend a sense of gratitude towards Vikas for bringing so many people on the platform and allowing all of us to share our thoughts. I think this is the brighter side of the pandemic. It has really brought us together and the world is really converted into a global pandemic. Thank you very much for that Vikas. Without wasting much of the time, I'll just share my screen and I'm given the topic which is on the trademark. Now when we talk about trademark, there is a lot that can be discussed. There are two ways in which any law can be discussed. One, you go with the statutory provision and the other side of it is the application that is discussing the case laws. However, there are some laws which require some sort of theoretical framework, conceptual understanding, because they are not just there for the interpretation. They are applied in the human life situations. So that is the reason I think Vikas just put to all of you those who are listening to me. We are going to look at certain basics of the trademark and that's what we're going to do and that's what I'm going to deal with. So starting with the scheme of the presentation, what am I going to do? I'm going to take you on a journey for around 45 minutes or so. We'll be talking about the meaning of trademark, what is the project of a subject matter, what is this concept all about and the functions of trademark, evolution of the law as it has evolved in India, certain important concepts that form the basics of this particular basis rather of this particular law. Distinctiveness and deceptive similarity which have always been their part and parcel of law of trademark since its inception across the world, right? It is not that only in India these concepts are recognized, but they are part and parcel of law of trademark when it comes to distinctiveness and deceptive similarity. So they become very, very significant. Then the registration part, the concept of well-known marks and how in this global village type situation and how in this globalization this particular concept is becoming more and more relevant and then ultimately we will end the discussion with infringement, passing off and the remedies which are prescribed for the same. So starting with the meaning of trademark, I think trademark is a type of intellectual property and the term intellectual property is in a way not defined because it's an umbrella term. There are a number of other types which are under that particular term like trademark, patent, geographical indication, industrial designs, copyright, so on and so forth. So intellectual property is a product of human mind. It is a combination of human intellect, skill and labour. It is divided by world intellectual property organization into two parts. It is the part one deals with the industrial property, which will include the trademark, which will include geographical indication, patent, industrial design, so on and so forth. And part two is exclusively about copyright and related rights. So this is where we can locate trademark, which is a property right. Again, it is a right, which is a statutory right. It is not available as on auto. It's not available automatically as a matter of course, right? You need to acquire it. Of course, there are certain things which are there like concept like first to use, first to register and how it is to be looked into, which I'll try to, you know, bring into our discussion as we move forward. So trademark, as you can see on the screen, it is some visuals, right? Some sort of like say, for example, we are very much, we can very well relate ourselves to these things. But I think we've never applied mine as to they are nothing but intellectual property and one that there are rights which are given under a prescribed statute, which is a very comprehensive legislation. And it's not something which is so new. It is something which has been with us since early nineties. So it's a visual form of a word, a device, a label, which is applied to an article of manufacture and it suggests to the purchasing community about its origin. I'm not referring to geographical origin. I'm referring to origin in the sense that it is from that particular proprietor, that particular manufacturer and it is mainly a kind of why property rights are given because it distinguishes the major main function of it is that it distinguishes such goods with which it is attached or services from the goods or services provided or manufactured by others in the same community in the trade. So this can be the simplest way in which we can understand what is the concept of trademark. Let me now very briefly talk about functions of a trademark, right? Now, how functions of trademark are so very important when you're talking about the law and the statutory provision. I think this is the precise reason why we have law about this. It identifies the product of its origin as I mentioned earlier. It guarantees its unchanged quality. Here, friends, I would like to bring to your notice that as far as quality is concerned, the quality has absolutely no quality is absolutely not a subject matter of consideration when it comes to granting registration. So if say, for example, I want to register a mark for my daily product. Now, I'm proposing a particular mark for daily products. Now, what is going to be the quality of those daily products that I am going to I'm going to attach this trademark to is not at all a subject matter of consideration. The registrar is not going to question you on the quality of it, right? So this is something that is very unique, but at the same time quality guarantee unchanged quality and maintaining that quality is something which is the key for the life of a trademark because if there is no quality, if it is deteriorating during the period of time or a period of time, then there are all possibilities that consumers will not go for it because trademark is attached to goods or services, whereby the buying decision of consumers are also required to be influenced time and again. And that's how I think you must have noticed that, you know, there is a shift in a punchline change in punchline. There is change in logo is change in color combination to attract customer keep reminding them that they exist because trademark is an identity. Like I am recognized by my name with the goods and services are also having names. They are also recognized by their names. So these are the main functions which for which the trademark actually is protected and by undertaking these functions effectively and efficiently a trademark over a period of time establishes goodwill in the market. And ultimately what is protected? The goodwill is protected. So goodwill is again a key concept when we are talking about trademark. Let me now just very briefly tell you what is the historical evolution. I'm not going to go into the laws which were there earlier, but just this timeline will help you understand that it is not something which is recent. Yes, the IP has become a buzzword and people are talking about it and discussing it recently, more recently. But this is something which has been with us since quite some time. So these are the three timelines. Sir, important is 1958 post independence, the bread and merchandise marks act that we had. And then 1999 we had this particular act, which is the act which is a result of the trips that is the trade related aspects of intellectual property rights. The most comprehensive international convention on intellectual property rights due to which India was under an obligation to bring about those changes or rather incorporate those changes in the act that we had in 1958, which wasn't possible. So we came out with the new version of it, which is the 1999 legislation along with the rules. That is what is the subject matter of today's discussion. Now, the important concepts, mark register mark, well known mark, trademark dilution, distinctiveness and deceptive similarity. These are the most important concepts. I am certainly not undermining the significance of remaining concepts, which also form a very significant part of the act. But without understanding these, I think we can't claim that we have understood the law of trademark as it exists in India. So I think there are a number of, you know, terms. I'm sure those who belong to law would definitely agree with me that there are multiple terms in law which are better understood than defined. You don't have definition and you are very much all right with it, right? Because you really cannot put it in that particular format. So a common understanding prevails. But as far as mark, register mark, such terms, well known mark, such a deceptive similarity, such concepts are concerned, we are blessed. We will not have to be dependent on the common understanding. They are made part and parcel of the definition clause. So it is very much defined. So starting with what is a trademark or what is a mark? I think why have I kept mark and trademark separately? Not only because it has been treated that way by by the legislation, a legislature rather, it is deliberately kept in that manner because there exists a distinction there. And the thing is that the trademark rights are protected irrespective of of its registration. Registration is the wisest thing to do. But if the mark is not registered, the proprietor is not remedeless. The proprietor is very much protected. However, the remedy is available in form of legal remedy, which is in common law and not in form of statutory remedy under the law of trademark. So that is why there is a distinction between mark and trademark. And from the mark to trademark, to being registered trademark, there's a journey which is to be completed by following the stages which are prescribed under the law. So mark as we have already discussed, it is anything which can be a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of God, so much. Yes, it can be anything. Now, a trademark. So the definition of trademark is going a step further. And it is providing the, providing the conditions for registration that a mark in order to be a trademark has to have these following things. Number one, it must be capable of being represented graphically. And number two, it must be distinct. It must have distinguishing character, which can definitely create a significant line of distinction from the other such kind of goods in trade. So mark is what a mark can be, can be a number, an alphabet, a logo, a ticket, label, anything. But for being a trademark, it has to be capable of being represented graphically and it must definitely be distinct. When a mark is being registered, I would just refer to the term because all these intellectual property rights are duration specific. They are protected for a specific duration. So the trademark when is applied for registration and the registration is granted is protected for 10 years in the beginning. But I'm sure you must have noticed on my slide that I've mentioned in perpetuity. So once it is so in the first instance, it is registered for 10 years. And then it can be renewed in perpetuity. The reason why it is protected and it can be protected in perpetuity compared to the rest of the forms of IP because what is protected through trademark rights is the good way. So it's possible that due to assignment, a has assigned rights to be, but then the good will doesn't change. The good will is very much part of that particular mark, which is required to be protected. So that is how it is a form of IP, which can be protected in perpetuity. Whereas patent comes to public domain in 20 years, designed in 15 years. Copyright is a little lendier than that. But it definitely comes to public domain, whereas trademark can be protected in perpetuity provided it is kept in use. It is kept in commercial use throughout. Now, what can we say to be a good trademark? In fact, why is it so important even for lawyers? It's very important to know what can be said to be a good trademark because the trademark related practice is not just limited to fighting infringement battles before the court. It's a very large part of it or a significant part of it belongs to the office of registrar. So when you apply for it and how you have to defend when there are questions on distinctiveness for the septicine map. So what can we say to be a good trademark? As you can see on the screen, we know all of them so well. I think can we actually imagine Edbury without purple? Can we actually imagine State Bank of India without this logo? They've been so synonymous. Right. So anything which is easy to pronounce, remember is capable of being described by a single word. Lendier the formation difficult it is to get registered. It is it should be something which should be very easy to spell also read also. It should appeal to eyes and ears also so that it's easy for you to remember. So that that is how the customers buying influences buying the decisions can be influenced so on so forth. So any trademark which is easy to pronounce, easy to remember, easy to spell appeal, it creates an appeal to eye and ear and it is not prohibited by law. Can definitely be considered to be a good trademark. But when there is a good trademark, how better you can judge its chances of being registered? It has to be distinct distinctive. Now, distinctiveness, what is distinctiveness and how distinctiveness can actually be understood? There is a letter of distinctiveness which is provided, right? As you move upwards, you stand better chances of being registered. As you come downwards, you lose better chances of being registered. Right. The chances also reduce as you come down. So the trademark can be of different types. It can be coined or fenceful. It can be arbitrary, suggestive, descriptive and general. So what is coined and fenceful? Something which is which is never heard before. Like Godav, Soni, Toshiba, these are the terms which are coined words, right? Which has no dictionary meaning and they are fenceful terms. So if you have a term which is a coined and a fenceful term, you stand highest chances of being protected. The second one is that you can see, right? Now, we start our application app if you are in English medium school, right? So if you are in an English medium school or later on in vernacular language, also when you are exposed to English, the first alphabet is A for apple. So it's quite known to all of us, even then it is very high on the letter of distinctiveness when such known terms or concepts are applied in an arbitrary manner, which is very distinct. Like I think before a few years or maybe three or four decades, nobody could imagine that there can be this kind of a logo which will create, you know, such kind of technological transformation in the world. So and that also it is half eaten apple, right? So it is arbitrary. If everything else is alright in your life and mosquitoes are really bothering, then good night. You will have good night, right? Suggestive, descriptive, traffic of the day, make my trip. These are descriptive and generally like Xerox, right? There are people who would never say photocop. You'll always say Xerox. Escalator, right? I think the signage system of the entire world uses escalator. Escalator was the company that introduced electronic staircase, but we don't use electronic staircase. It's very interesting to see these kind of some few other generic terms, right? We are under the impression that it is actually that product. It is not the name of the product. It is the company that made that product for the first time and introduced it to market like Vendit, Xerox, Superglue, Escalator, Post-it, Bubblewrap, so on and so forth, right? So all of them are generic. Now, when a mark becomes generic, it is not protectable, not protected or can also be withdrawn from the register of protected trademarks. Because it is no more distinct. It must be distinct so that distinctiveness it loses. All these generic trademarks when were introduced, definitely were introduced with being most distinct, but over a period of time, they have become general. Let me now take you to another very, very important concept, which is the which is the foundation of this particular legislation. And that concept is deceptively similar. Now, what is deceptively similar and why is it a foundation of the law? Whenever there is somebody else who is using your mark on all occasions, you do not stand chances of seeking remedy, right? What is something that you will have to prove? You will have to convey that there is a mark which is identical or similar to your mark and it is so nearly resembling your mark that it is likely to receive or cause confusion. Here for our reference, I have put two, one original and one deceptively similar mark together. But friends, mind when when trademark infringement or passing off takes place, it is not that both of them are available together, right? They are not available side by side. One is available in alternative or substitute of the other, like aquafina and aqua only you don't have aquafina, you have aqua only. So you end up thinking it is that. So in that manner, deceptively similar would work. And the thing is that you win our subject to imperfect recollection of memory. So if you put them side by side, you will find empty numbers of dissimilarities, but then we do not, our mind would not register such minute differences, right? It would always go by the major color scheme, the way in which it is written and what is the term which has been written or which has been attached to goods or services. And accordingly, the end market when you are there, you will definitely end up being victim of this deceptively similar product. And then you may end up buying it, which would be a lower student registered proprietor or the trademark proprietor. So deceptive similarity is this. And again, why is it foundation? Because deceptive similarity is a ground for opposing the registration of mark for challenging the validity of it. It is also a ground for rectification and a ground for suit for infringement and possible. So it is like everywhere throughout the legislation, deceptively similar mark or deceptive similarity is the concept that you must be very clear with. Let me now take you to stages of registration, right? It's like very simple filing of an application, number is allotted, then there is a search, then there is acceptance, then, you know, it will be put up for opposition. And those who have opposition against it will be heard following all principles of natural justice. And then after the oppositions are heard, if they are found to be legitimate, of course, there will be no registration. And if they are found to be, if they are removed, rather, in favour of the applicant, then, of course, there will be issuance of certificate of registration, grant of it, approval and issuance. So these are the stages. Now, when we are talking about these stages, there are two most important things that we need to understand. And these two most important things are part of one head, which is grounds for retribution, because when a particular application is filed, you feel that your mark is most distinctive, but it might not be true. So on what basis the registration can be refused? So there are two kinds of grounds, the absolute grounds which are prescribed under section nine of the Act and relative grounds that are prescribed under section 11 of the Act. So when we are talking about absolute grounds, they are in this manner, as you can see on your screen, something which is completely devoid of distinctive character, something which is descriptive. Like say, for example, you can't have supreme, you can't have E plus, you can't have best, you can't have something which is customary or generic like SPF or sunblock pollution, because customary in the business used to be used, something which is creating confusion, something which is hurting religious sentiments, something which is obscene, scandalous, something which is related to shape of good. You would wonder, those who have been with me, definitely can come to question on how shape of good was definitely part of the definition and now it is part of the absolute grounds based on which the trademark registration can be refused. Now all shapes are not there under section nine. There are three categories of shapes which are not registrable. So you cannot have a shape which is a natural shape. You cannot have a shape which is required for technical results. Let's say, for example, can you think of a triangular screen for your monitor? It won't give you technical results, right? So the shapes which are required for technical results are not found to be distinctive and cannot be predicted. And finally, those are shapes that adds to only a theoretical look or value of the product would fall in industrial design and cannot be registered as a mark. And now the shape, color combination form, very important part they are known as thread dress. So thread dress is very much part of the thread mark. So that is how in absolute grounds, this has been clarified that these three categories are not registered. Then there are exceptions. Now it's very interesting friends that all these are such that are, you know, grounds for refusional absolute grounds. But then there is a proviso which is added to this particular section which says that when the distinctiveness is already acquired, even if the mark is descriptive, even if it is little confusing, even if it is devoid of distinctive characteristic, it can be protected. Right? Because there are the concept of distinctiveness has two parts to it. Number one, the distinctiveness can be inherent. And number two, the distinctiveness can be acquired. So like Sunni, Toshiba, Kodak are inherently distinctive. However, coffee, coffee, coffee day, make my trip good night. They are not inherently distinctive. They have acquired distinctiveness over a period of time through use. So when it comes to such which are already in use, because as I mentioned, the object is to protect red mark and thereby protect goodwill. So those marks which have already established goodwill in the red and commerce, of course, cannot be refused protection only on the ground that it is not inherently distinct. So that is how there is a concept of acquired distinctiveness so that it can be used for protecting goodwill and well-known marks. Well-known marks means generally what happens is in case of in case of routine or ordinary marks, rather ordinary mark is a perfect term for it. In case of ordinary marks, the mark is protected under classes. There are 45 classes which are there under review too. And as far as those classes are concerned, one has to apply under a specific class for protection. So if you have protection under one class, you do not get protection across classes, right? You get protection limited to that. Even if there is the somebody is using similar confusing or even identical mark for something which is nowhere related to your category of goods and services that can be allowed, right? But as far as well-known marks are concerned, you get protection across. So if you have a well-known mark, somebody else cannot use it for anything. Even if it has nothing to do with your category of goods, no proximity of trade channels, no confusion in the minds of customer. But it is something which is required to be protected because of the good way. So these are two exceptions. Next category of grounds for diffusion, relative grounds. Whenever there is a mark, which is, you know, there is a mark and there are goods and services. So when a mark and the goods and services work are identical, say for example, lack may for cosmetic products and lack may for cosmetic products. No question, right? No likelihood of confusion there is by all means deception. But there is a possibility that there is a mark which is too used for related kind of goods, right? Say, for example, textile and jewelry, right? So they are having trade channels which are sharing proximity. So there is a confusion and it is possible. So in that manner, I think there is somebody who is anonymity on the slide. Ma'am, you can just stop the annotation part. Automatically, nobody can scribble it. I'll just do that. Yeah. And you can just use the razor. This will go and thereafter stop the annotations. Yeah, I am on the annotation and mouse select text draw. Rather, I would request that participant not to do that. Exactly. I would definitely. And if you have questions, you can raise it later on. It's something which is very unprofessional, especially for the person who's speaking. Sorry, please don't do this. Okay. So yeah, you have found that stop, stop annotations. Annotation I'm opening. It's a mouse select text draw stem spot like eraser format undo. I'll do a razor and then it will be stopping the annotation part. The razor will delete all this and thereafter it will be. Yeah, that's okay. And then format undo, redo. Sorry, I don't want to waste time. And that will unnecessarily affect me as well as other participants who are carefully listening. Okay, so we are talking about the grounds and the next thing that I want to bring to your notice from this is the concept of well known mark. I have kept it precisely like this because as far as the well known marks are concerned, when we were talking about the grounds, their well known marks and the provisions are prescribed under section 11 itself. So a well known mark is a mark which has become so to a significant segment of population. That is the first requirement. There has to be a recognition in that particular category. And then when that particular mark has become so recognizable into inverted coma well known, that is required to be protected because it has been successful in establishing a very strong link of recognition with that category of products like say, for example, a moon for dairy products, say, for example, for I think it has almost become a synonymous to mineral water because we recognize it that way. Maruti, Bodrej, Bajaj, Masjid is base. So all these are well known marks and there are specific provisions now to protect them which were not there earlier. So this is something which I think is very important for us to know. As far as the statutory framework goes, earlier it was only defensive protection which was available, which wasn't really helping the well known marks to get proper protection. But under the existing mark, there is not only definition, but there are also other specific provisions to fight against violation of rights of well known mark which is section 294. And recently in 2017 with the amended trademark rule under rule 124, there is a possibility now for applying for well known mark. Otherwise, it wasn't possible to apply for a well known mark. You need to get this particular, say you need to get this particular status by or through particular court decision. I think those who are interested can just Google this particular thing on the IP India office, go to the trademark page and there you can see the list. So all those cases of various high courts and supreme court, whereby the status of well known mark is given by recognizing it. That was the only thing which was possible but now it is possible and application can also be filed. So I think with this we can understand the significance of well known mark. Going further with this, I think when we are talking about well known mark, I also have to talk about one aspect of it which is trademark dilution. Now I think on the screen you can see it is a logo of two different things. Of course Mercedes Benz we know very well. This particular case is of 1998 when there was no provision on protection of well known mark through trademark dilution. This particular case of Delhi High Court very clearly the High Court said that such kind of mark like Mercedes Benz, such kind of marks that have been in trade and commerce and have earned such goodwill are not available for easy grant. And when it is being used by the defendant that is the proprietor of VIP Benz, Benz at the government, it was conveyed that they cannot dilute the distinctiveness that the mark has earned. Like Mercedes Benz can be joined only and only attached only with luxury cars. So it is very interesting friends, there is no way in which there will be any sort of confusion. The concept of deceptive similarity that we understood in the beginning has no role to play here. That convention litmus test is to be kept completely aside and the dilution is not permitting well known mark being used for other categories of goods once it has acquired that status of well known mark. So, trademark dilution is a doctrine which we have adopted and it is part of our section on infringement of trademark which is section 29 subsection 4, right. Due to positive of time I can't really go much in detail. I'll now go to the infringement part of trademark, which is of course very important as I mentioned section 29 is a separate section which has been provided. So the new act definitely has provided the protection which is more comprehensive so there was nothing on dilution, there was nothing on comparative advertisement earlier. But now there is this kind of protection available. The most important thing that we need to understand as far as the trademark and the remedies in case of violation of trademarks is concerned is that there are two categories of proprietor. Number one, there are proprietors who are trademark proprietor and the second category is of those who are registered trademark proprietor. So those who are trademark proprietor will also be protected as I mentioned because it's the goodwill which is to be protected and they have also on sufficient goodwill whereby they can definitely claim that they need to be eligible for this protection. And we follow first to use and not first to file and registration is not kept compulsory under our act. So that is how that particular activity will have remedy but not through infringement. Infringement is only available or the remedy under section 29 is available only to those who are registered trademark proprietor. So whenever there is a trademark proprietor who has acquired registration by duly following the process as laid down under the act, that person in case of any third party using his or her mark in an unauthorized manner will be eligible for this particular remedy. So we are clear that infringement is available only to those who are registered trademark proprietor and it would happen in this manner as you can see cloded and can did right. So the court while passing this particular judgment and giving this decision was really furious if you read the comment of the court in the text of the judgment that as far as the pharmaceutical industry is concerned they really need to take care and if you see both of them. It's very, very hard to find the distinction right and as I mentioned one is available in absence of love. So then when you want can did and you have seen cloded it's difficult for you to see whether it is candied or cladding. So let me now tell you about the elements of trademark infringement the trademark infringement would be by an unauthorized person. Of course we know that whenever there is something which is done but with authority, it's not illegal. So any unauthorized person is using identical or deceptively similar mark right of course that mark has to be registered mark which is applied to goods and services. So unauthorized person has to be there registered mark has to be there mark must be attached to goods and services and the other person using the mark must be using it in an identical or deceptively similar manner. Then one can think about whether there is trademark infringement or not the essentials how would it happen right so what are what would be there that we have seen in the earlier slide now how that would happen right taking away of any essential features if we go to the earlier slide of say Paytm PayPal or Candid cladding it's like not few essential all essential elements were borrowed right then it is something which is in the matter in the course of trade. So if like say for example I am using all these logos now I have not sought their promotion I am using it for your academic purposes it's not used in course of trade. So then it's permanent though there is no authorization for it and of course it is something which must be printed or oral use cannot be considered to be infringement because you need to have you know, you need to have deception involved somewhere likely to cause confusion as far as the customers are concerned. So in that manner, these are the essentials or any or all of them together would definitely constitute infringement infringement through comparative advertisement that involves disparagement. So this is something which is a new addition in this particular latest act that is of 1999. Earlier there wasn't anything and I'm sure these battles between Pepsi and pork thumbs up and Pepsi or rain and tide conplan and politics are dagger and he money are not new to us right we know them. They have been you know, coming out with such kind of advertisement because what was permissible as far as the advertisement is concerned you can definitely shout and tell the world that my product is the best, but you cannot say that I am good because the other one is bad. Now that is something which is not possible. And when that happens, it definitely affect the bill, it will definitely influence adversely the buying decision of the customers. So that is how whenever there is an agreement that is there to try trying to take unfair advantage of and is contrary to honest practices right or mutual involved in the commercial matter, or is detrimental to its distinctive character, or is against the reputation of the mark, then it can definitely fall within the four corners of section 29. And as far as this particular provision is concerned, it is prohibiting disparagement in advertisement and I'm sure number of interesting examples are available those are interested. Please Google these things and in the on YouTube you will get to see number of videos when I talk to my students I show them those videos and they are very very interesting and we are definitely convinced that it is detrimental to the distinctive character. And it affects adversely to the good will which has been established by the mark. What are the acts that do not constitute infringement right there is a separate section which has been provided that is section number 30 after 29 that following are the exception right when a trademark is being used in form of honest practices when it indicate kind quality quantity. As you can see on this particular example that I have used on the slide, and I have you know, Mark this but highlighted this particular, but all around protection, right. There was a suit which was filed in the court said that as far as the all around protection term which is being used is concerned that can be no right on it, because it indicates the mind quality quantity, and that is to anchor and orally, of course on that you have right but when you are acting like supreme, you are attaching best a plus all around protection, or you are using terms like state sugar, right. It's a combination of two English terms. So, then it would definitely not be available for because they cannot be monopolized, they are the terms which are used in the general language in the general parlance and they cannot be monopolized and they can be no rights on it. Again, when it is outside the scope of protection or there is an implied consent to use it, or when the same mark is being used for the, for the sorry, for the parts in relation to parts and necessities, or there are two trademarks which are already registered, right and both of them are there. So, there is a concept of honest concurrent user. There is a concept of prior user due to positive time I'm not able to discuss all of them, but I'm just throwing few terms those are interested can definitely take it forward and can understand it better on their own. Now, I'm going to passing off because we are clear that there are two status number one, the trademark proprietor and number two, the registered trademark proprietor. So, when it comes to registered trademark proprietor we have seen that such in 29 elaborately protects them. Now, what about those that are not protected that those are not registered. Right. And the thing is that in a country like India you can't expect people to be so aware that they would go and get their mark register. And the thing is that if we look at the cycle of the growth of a mark it is you know, it is at four levels. It can be regional, sorry, it can be local, it can be regional, it can be national and it can be international. So, what about those which are not registered. Right. They can be protected as per the common law remedy which is legal and not statutory. It is known as passing off. Now, what happens in case of passing off. So, passing off is sailing once on woods under the pretense that we are the goods of another proprietor. Right. So, you try to pass off your goods as if it is coming from the other person and try to take a new advantage of it. That is passing off. Which is very, very simple to understand. Now, there is an explicit mention of this. Very clearly in a digital manner it has been provided that no action for infringement for all unregistered. Section 27 which is before 29 is very clearly providing under this particular act that anybody who is not having registration is not eligible for infringement. However, in the very next subsection, subsection two, it has been clearly provided that nothing in this act shall be deemed to affect. The rights of those who are having not having registration. So, they are protected to pass. So, this action is very clearly providing that those that are not registered are not remedies. So, it is something which is going to step forward for recognizing common law. Otherwise, the common law remedy when are available may not be statutorily addressed, but there is an address over there and Section 27. The most important thing that we need to know about the issue of passing off that is that the elements of passing off misrepresentation, goodwill and damage. So, as far as passing off is concerned, one has to show that there has been a misrepresentation that has been goodwill already earned, which is not the requirement in case of infringement. One does not have to establish before the court that he or she has earned sufficient goodwill. That is not required. But in case of passing off that is required and then how that misrepresentation is causing damage to the goodwill. And of course, the other fundamentals remain the same, like deceptive similarity or maybe some other principles which are there, they will more or less be the same when the court has to take this into consideration. Now, when we are talking about how an action can be taken and under what provisions relevant action can be taken, we also need to know what are the remedies. There are three forms of remedies which are available, civil remedies, criminal remedies and administrative remedies. I'm not going into detail. Civil remedies, of course, by the way of filing a suit and criminal remedies, just would like to highlight over here that as far as criminal remedies are concerned, there is a chapter which is there on these criminal remedies and the offenses. There are certain acts which are highlighted to be offenses under these set of sections and for that there are criminal remedies and administrative remedies before the office of the registrar. And these three set of remedies, I think, try and give wholesome protection to the trademark. Thank you very much for giving me this opportunity. And I would not say a patient hearing because the virtual world, that's an advantage that you get. It is not possible in the physical world. Thank you very much Vikas. I'm open for questions if there are any. Yeah, this is. By Komala Grol, Canada Registration of Trademark, we were drawn before it is registered. Of course, it can be and it can be abundant also. And that's, I think, the second stage that I mentioned that, you know, giving the number. So allotting the numbers are in fact, if you do not want to pursue your registration, you can just abandon it. And then in future, in case if you plan to go for registration again, you will be having an advantage of showing how you have been, you have been using this particular mark if there is somebody who is proposing it. And you come to know you file for an opposition, this will be a huge advantage for you because you already have a number and that is something which has been given by the office of the registrar. You can show that since then you have been using this particular mark. So you are a prior user and the other person will not get this. This is what is the difference between infringement and passing of basic difference. The difference between the two is it is both of them are form of remedies and these forms of remedies are available to two categories of proprietor. As I mentioned, registration is not compulsory as far as this act is concerned. So without registration also there are rights because what is required to be protected is good. So those who are registered trademark proprietor will file under section 29 for infringement and those who are not having registration simply trademark proprietor they are, they will go for an action which is passing. This is what about the infringement of trademark globally. This is by Devyan Modi. Infringement of trademark globally. I think before that, I think what we need to understand is protection of it globally. Now before few years, before trips it was difficult. In fact, before Madrid it was difficult. But now we have a single window facility and you can definitely protect your mark in multiple countries at a time. So it depends on the jurisdiction. If that jurisdiction is recognizing like say for example, if you are a well-known mark, there is no requirement of registration as far as India is concerned. So without registration also a well-known mark of Spain or Germany or US can be protected in India. So it depends on the jurisdiction and their domestic legislation. But irrespective of that, if you are looking for protection worldwide, better to go for protection first. Then you can go for action against violation. This is by Shahid. How has the Apple protected the company trademark? Because it's generic. Should we only register trademark of the name or also how it is written? That is the font style. Mark is a composite mark. So there are various elements and as far as the rules are concerned, it is prescribed that you can go for logo. You can go for color combination. You can go for the word. So the word mark is to be registered or the device can also be registered which involves artistic work. So they are very clearly available as far as the rules are concerned. So accordingly all can be registered. Now Divyaan Modi says, could you explain section 27 sub clause 2 and whether there are any landmark judgments as such? Okay, the most important. Ma'am, can you remove the PPT because we are done with the PPT. Oh yeah, sure, sure, sure. Yeah. Okay. So I think as far as section 27 is concerned, section 27 very clearly provide that first of all, there is no remedy in case of unregistered. So if you read section, subsection 1 of 27 without going to subsection 2, you will feel that there is no remedy available as far as the unregistered mark set. But immediately the second subsection is provided and it says that in case of those which are not registered, there is a common law remedy in form of passing off which is available and there is nothing which is stopping that person to initiate that remedy under this particular act. So it is, you can say in express, you can say in express provision which recognizes the passing of action. As I mentioned, not necessarily wherever passing off is available, a common law remedy is available is statutory address. But in red mark, it is statutory address. Now any landmark decision, I think Cadillah Healthcare versus Cadillah Pharmaceutical, Falsi Go, Falsitem. This is the most important document on passing off whereby the court laid down around 6 to 8, 6 to 8 cases also, sorry, the test also and those tests then can be applied. So till now that is considered to be the law which has been set by the court. So you can go through that particular case and I think it will clarify a lot too. So ma'am, we have no other questions. I just also watched it under Facebook. We didn't have any questions. Okay. Thank you for making us understand the nuances of law of trademarks. And as we always say to all those participants who have been watching us live on the Facebook and YouTube, coupled with those who have been on this platform, we are all thankful that you are motivating us to do better and better. Thank you.