In late 2008, a legal battle broke out between GlaxoSmithKline Consumer Healthcare (GSK) and Heinz India (Heinz) over the advertisements of their respective health Horlicks and Complan.
2. TRADEMARK OWNER
• ATTEMPTS TO ENJOY PECUNIARY BENEFITS
comparision between
• his product, service, or brand and that of a
competitor
3. UNTIL IT WAS REPEALED BY THE COMPETITION ACT, 2002 SECTION
36A(X) OF THE MONOPOLIES AND RESTRICTIVE TRADE PRACTICES
ACT, 1984 PROVIDED A BASIS UPON WHICH A CLAIM COULD BE
MADE AGAINT DISPARAGEMENT OF GOODS. SECTION 36A(X)
LIMITED COMPARATIVE ADVERTISEMENT BY RECOGNIZING THAT
HE PUBLISHING OF ANY MISLEADING OR DISPARAGING FACTS
ABOUT A COMPETITOR’S GOODS OR SERVICES AMOUNTED TO
‘UNFAIR TRADE PRACTICE’.
4.
5. is for a colour that does not serve
a technical purpose,
is for a colour that the public uses
for distinguishing products and
is of a single formulation and is
not for the colour in the abstract,
Should Colours be also allowed
to distinguish in
advertisements???
6. At this stage we are not concerned with whether a particular colour points
towards a particular company or not, but whether the public views the
colour of a product (in general) as a indicator of its manufacturer.
Generally, a colour is seen as a natural property of a product.
7. In Cipla Limited vs. M.K.
Pharmaceuticals, the
Delhi HC held that a
company did not have
the right to gain
monopoly over the
colour orange.
Though the
functionality test does
not apply to colours in
India, it is significant
for us to note the
consequences of not
having such a test.
ABSENCEOF FUNCTIONALITY
SAFEGUARDIN INDIA
8. •Courts take a judgment call on whether the allegedly
infringing mark is confusing or misguiding the public
regarding the origin of the product.
•If such a test is used for judging infringement, then a
whole swathe of colours other than the registered
colour would be protected.
•This is because a regular customer will hardly be able
to see the difference between colours that lie close on
the spectrum.
