ONLINE TRADEMARKINFRINGEMENT AND THELIABILITY OFINTERMEDIARIESISHAN GUPTA (11IP60027)UNDER THE GUIDANCE OF : PROF. DR. T K...
Background The sale of counterfeit goods over the Internet amounts to more than $30billion worldwide. Trade mark is an I...
Objective To study the standards in different jurisdictions with respect to Onlinetrademark infringement and to weight th...
Introduction Trade mark. Infringement: Mark identical or deceptively similar. Online Trademark infringement Who is a I...
Contd. The first and foremost issue: Jurisdiction. Article 8 of Paris Convention. The next problem: The infringer canno...
Secondary Liability. The actual infringers cannot be traced so the Courts have started holding theIntermediaries liable....
Contd. Fonovisa Inc. v. Cherry Auction, Inc.,: 1996: Wilfully blind. Gucci Am., Inc. v. Hall & Assocs. and MindSpring En...
Contd. Directive 2000/31/EC : E-Commerce Directive. A service provider is not liable if: Has no knowledge of illegal ac...
Contd INDIA: Consim Info Pvt Ltd v Google India Pvt Ltd., Madras HC casediscussing the contributory liability of intermed...
Pros & ConsThe pros and cons of making and Intermediary liable. Difficulty in evaluating the Ownership. Specialists requ...
Conclusion Conflict of National Laws creates problems for the Global intermediaries. There are Acts evolving with relati...
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Online trademark infringement and the liability of intermediaries

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Online trademark infringement and the liability of intermediaries

  1. 1. ONLINE TRADEMARKINFRINGEMENT AND THELIABILITY OFINTERMEDIARIESISHAN GUPTA (11IP60027)UNDER THE GUIDANCE OF : PROF. DR. T K BANDYOPADHYAY
  2. 2. Background The sale of counterfeit goods over the Internet amounts to more than $30billion worldwide. Trade mark is an Important Intellectual property which represents theBrand identity. Globalisation through Internet has caused lot of anomalies.
  3. 3. Objective To study the standards in different jurisdictions with respect to Onlinetrademark infringement and to weight the pros and cons in comparisonwith the laws in India.
  4. 4. Introduction Trade mark. Infringement: Mark identical or deceptively similar. Online Trademark infringement Who is a Intermediary? Search engines, social media sites, online auctions & retail sites. Problem.
  5. 5. Contd. The first and foremost issue: Jurisdiction. Article 8 of Paris Convention. The next problem: The infringer cannot be traced.
  6. 6. Secondary Liability. The actual infringers cannot be traced so the Courts have started holding theIntermediaries liable. Secondary Liability: ContributoryVicarious US: The Lanham Act, 1946 : silent of Secondary liability - Courts have laid downthe standard. Inwood Labs., Inc. v. Ives Labs., Inc., 1982: Two point test. Hard Rock Cafe Licensing Corp. v. Concession Svcs. Inc., 1992: Wilfully blind.
  7. 7. Contd. Fonovisa Inc. v. Cherry Auction, Inc.,: 1996: Wilfully blind. Gucci Am., Inc. v. Hall & Assocs. and MindSpring Enter., 2001: Liability of ISP. The current position in US: Tiffany (NJ) Inc. v. eBay Inc.,2010: Inwood test. EU: Liability of non direct infringers- not defined in EU Trade Marks Directive orThe EU Community Trade Mark Regulation - it is matter of domestic law.
  8. 8. Contd. Directive 2000/31/EC : E-Commerce Directive. A service provider is not liable if: Has no knowledge of illegal activity. Removes such information upon acquiring knowledge. Considering the German case, Internet-Versteigerung I–III Plaintiff :Rolex v. ricardo (Internet Auction Decisions I–III): Same test as that of Tiffany v. eBay(Inwood). Lack of intent: eBay not liable.
  9. 9. Contd INDIA: Consim Info Pvt Ltd v Google India Pvt Ltd., Madras HC casediscussing the contributory liability of intermediary. Plaintiff had registered trademarks of “Bharat Matrimony”, “TeluguMatrimony”, etc. ;The defendants (Jeevan Sathi, et al.) had bought keywords ofexactly the same or similar words. So, the plaintiff brought an action ofTrademark infringement through keywords. Action was brought against Google since it provided the ad words. The case was decided in Google’s favour.
  10. 10. Pros & ConsThe pros and cons of making and Intermediary liable. Difficulty in evaluating the Ownership. Specialists required for identifying counterfeit products. Time consuming and expensive. eBay has a VeRO program (Verified Registered Owner). Sites derive profit. They cause damage to actual Brand owner, by providing a plat form for infringes.
  11. 11. Conclusion Conflict of National Laws creates problems for the Global intermediaries. There are Acts evolving with relation to dealing these issues but moreinviolable provisions should be introduced. Need for international standards in this perspective. Balance between the Owners and Intermediaries is should be maintained.

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