Thứ Năm, Tháng Sáu 1, 2023
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When generic expressions are copyrighted

Many people may remember the advertisements of the Essar corporation, which, in its heyday, had the words “positive attitude”. Now, both ‘positive’ and ‘attitude’ and their pairing are common words in English. Can copyrights prevent others from using them to brand their products?

The Delhi High Court faced this question recently. Large French beauty company L’Oréal, whose products are branded ‘Hair Spa’, was upset when Thai company Pornsricharoenpun, in 2011, advertised its new product. , ‘Berina Hair Spa’. In 2014, L’Oréal filed a permanent injunction, claiming that Pornsricharoenpun’s use of the registered trademark ‘Hair Spa’ constituted an infringement.

L’Oréal received a favorable order in a lower court, but the Delhi High Court, upon hearing the Thai company’s appeal, held that ‘Hair Spa’ was a descriptive term. widely used in commerce to refer to nourishing and therapeutic products. hair. Since ‘hair’ and ‘spa’ are common English words, the combination “lacks the distinctiveness necessary to be considered trademarks”. It further ruled that L’Oréal’s own trademark ‘Hair Spa’ did not possess the distinctiveness necessary to prevent others from using the generic wording. Furthermore, the colors, fonts, and typography of ‘Berina Hair Spa’ are different from those of L’Oreal, the court noted while dismissing the lower court’s order.

Writing in Mondaq, Asavari Mathur, an attorney for Photon Legal, noted that the ruling “sends a clear message that the standard for protecting and maintaining descriptive marks is set very high”.

Companies must be able to demonstrate through substantial and reliable evidence that their marks have acquired a special secondary meaning, separate from the product itself, that is instantly identifiable. with their brand, Mathur said, noting that Delhi HC’s decision has “maintained the integrity of trademark law”.

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