The Hindu Business Line : Get law on your side

A DEAD cockroach floating in a sealed soft drink bottle drives a customer to sue the shopkeeper, bottler, brand owner and even a cine actor who features in the TV commercial for the product. Elsewhere, a court orders the erasure of advertisements that can be ecologically offensive. If marketing has arrived, so has law in it. However, "few legal books address the process and function of branding," notes Rodney D. Ryder in his book Brands, Trademarks and Advertising, published by LexisNexis Butterworths India (www.lexisnexis.co.in) .

Legal and marketing are complementary, though distinct, functions, he writes; "often organisations, companies and educational institutions compartmentalise the roles to their disadvantage." The preface cautions: "The language used by lawyers and marketers may be the same, but the meaning is often different." Likewise, what marketers do as promotion and publicity with the best intentions "may undermine a branded product's legal protection and cause the name to be treated as generic."

The chapter on legal framework discusses key elements of the Indian Copyright Act as also analogous law in the UK, citing numerous cases. For instance, a 1941 dispute was between King Features Syndicate and O&M, on the use of Popeye in brooches, a transfer from two-dimensional cartoon strips to three-dimensional objects. "In India, the principles of infringement action were first embodied in Sec 54 of the Specific Relief Act of 1877."

Barbie was in the news recently for suits against projecting a stripped doll in nude art. Protecting product appearance was an issue for Lego and Rubik's Cube too. For the latter, there were at least 40 different companies manufacturing copies, leading to legal battles in the UK, France, Benelux countries, Denmark, Austria, Canada, Australia, Japan and the US.

Then comes protection for packaging, because "very often, the rival product starts life as a cheaper version of the brand leader within a particular product sector, using packaging that is reminiscent of the established brand, but with the emphasis at point of sale on the price differential rather than quality." That explains cunningly designed detergent wrappers and incense boxes, footwear logos and even rival candidate names in elections. "The danger for the brand owners is not the competition per se, but the confusion suffered by the public and the loss of distinctiveness of the original brand." Left unchecked, the brand would degenerate into a commodity, where competition would be on price.

In `brand stretching,' a case that is discussed is Newsweek Inc vs BBC, where the current affairs magazine was against a TV programme with the title Newsweek. Court considered "proposed extension of the plaintiff's business activities into the field of broadcasting as too speculative to be taken into account" and ruled there was very little confusion. The chapter on advertising and promotion takes up Frito Lay India vs Amit Goswami as a case study. The tussle there between the two chips companies was about similarity in the freebies, Tazo and Amazzo.

Comparative advertising is another litigation-prone area. Use it when the points of difference are unassailable, advises Ryder. He does crystal gazing in chapter 8, titled `brands, trademarks and advertising: towards a future,' where he weighs antidotes to `shortfalls in protection.' At the end is a discussion of `digital brand management,' where fights start right from domain name registrations. Indian courts have been benign to brand owners as the decision in Tata Sons Ltd vs Manu Kosuri would show. Manu had registered jrdtata.com, ratantata.com, tatapowerco.com and so on. The court restrained him from using any domain name relating to Tata and observed that domain names are entitled to equal protection as a trademark; and that they are `more than a mere Internet address.

BookMark@thehindu.co.in

Article E-Mail :: Comment :: Syndication :: Printer Friendly Page

Stories in this Section
Are you wearing SMS today?

Putting juice in growth

Packaging unveiled

Creativity. Is something wrong?

The new witch doctors

Real good ads for chicken