Trademark infringement is the unauthorised use of a trademark, one of the many ways intellectual property rights are violated. In layman's terms, a linguistic trademark is a marker that helps differentiate one company's product from the products of other companies of similar sort. The evolution and development of trademark law protect the rights of manufacturers and sellers. Still, the advancement of technology and the emergence of social media have compelled legislators and interpreters to intervene continuously and keep a close eye on the various new issues related to trademark infringement.
The proliferation of social media apps and their intrusion into our lives has radically altered the marketing game for every corporate organisation. Social networking and social media are crucial to developing company strategy, notably marketing for all businesses. However, trademark protection has always been crucial for a company since it is directly tied to product identity. Still, in today's social media culture, the risk of trademark infringement has increased significantly.
Different kinds of misuse, unauthorised use, and infringement of trademarks are:
- Brand Protection is about online trademark infringement, primarily selling counterfeit items on online marketplaces like Amazon, Flipkart, and others. It also includes deep linking and Meta tagging to use the company's unfair advantage of a brand name or goodwill.
- Hashtags and trademarks: It uses the '#' sign before any word or phrase on social media platforms to make it readily available for the user, as it restricts search results to that specific phrase with a # sign. According to Section 2(1)(m) of the Trade Marks Act of 1993 (hereafter the Act), a "mark" is "a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging, or combination of colours or any combination thereof." Regarding hashtags, section 2(1)(zb) of the Act specifies unequivocally that a mark must be capable of pictorial representation and distinguish one firm's products from those of another to be a hashtag.
- Parody and trademark: Parody is defined as imitating someone's work to criticise or ridicule it. There have been examples where, even in the context of parody, the imitator was determined to infringe on the trademark.
- Disparagement of product: Advertising is essential for communicating with prospective and existing clients and increasing the firm's revenues. Sometimes, businesses engage in unethical actions to harm their competitors' reputations through disparagement, which involves making false assertions or remarks about a competitor. Discrimination is illegal under Indian law. Section 29 of India's Trademarks Act 19995, which addresses comparable advertising, states,
"A registered trademark is infringed by any advertising of that trademark if such advertising—
- Takes unfair advantage of and is contrary to honest practices in industrial or commercial matters; or
- is detrimental to its distinctive character or
- is against the reputation of the trademark". In this sense, an advertisement that contains false information about a competitor's products is considered disparagement and trademark infringement.
To be more specific, Section 30 (1) of the Trademarks Act 1996 prohibits the use of competitive advertising. It states that the competitor's trademark must be utilised truthfully. Comparative advertising can thus be permitted if it does not harm the reputation of the competitor's goods."
Without a doubt, social media has changed our lives. Commercial organisations must adapt their strategy accordingly because our way of life has changed. New methods of promotion and selling have introduced new obstacles and potential hazards to intellectual property rights, necessitating ongoing efforts to protect the laws in the new market culture. In this modern dynamic corporate environment, further aspects, new issues, and unknown dimensions are expected, so laws must be updated and comprehensive to meet all expectations.