IPR Alert on Trade Marks Law

The Trade Marks Bill, 1999 (No. XXXIII of 1999) is a draconian legislation that limitlessly enlarges the scope of trade marks and their infringement, creates unaccountable structures of power and decision making, shifts economic acts from a civil domain to a criminal domain and offers no protection to the citizens of India either as producers or as consumers. The Bill will have far-reaching consequences for the manufacturing and services sector in the country, both in the organised industrial sector and in the informal cottage industry sector.

The issue of trade marks is not just a technical issue of the use of signs, words and symbols. Intellectual Property Rights (IPRs) like trade marks are primarily a market instrument and a form of economic policy. The shape of the trade mark legislation is therefore a reflection of the economic policy that this government is promoting, and it determines which economic actors will have protection and control over markets and who will be excluded.

This Bill needs to be redrafted because it fails the test of democratic criteria and the test of economic criteria of protecting the livelihoods and markets of millions of small producers of goods and providers of services in India. It is blatantly against the Constitution of India, especially the protection of fundamental rights of citizens, in terms of far reaching changes introduced without adequate reflection or democratic participation.

This Bill is a mode of political control and social accountability systems for curtailing the commercial malpractice by corporations. The Bill enlarges the subject matter of trade marks from “goods” to “goods and services”. Since the large multinationals are engaged in the production and distribution of both good and services, this enlarged coverage is both necessary and desirable for them. However, in terms of interests of the Indian society, the joining of goods with services in trade mark law is neither necessary nor desirable.

The scope of trade mark law has also been expanded in the definition “infringement” as in Clause 29 of the Bill. The scope of infringement has been taken beyond the commercial domain into the democratic space of citizens. If such clauses are not deleted from the bill these can be used by the MNCs to silence all citizen actions against them. It thus curtails the civil liberties of citizens. Such clauses sound the death knell for all environmental movements, all consumer rights and awareness movements and the foundation of democracy itself.

In this bill, infringement has been expanded to include not just deceptively similar but similar marks, [Clause 29(2)(b)], similar goods or services, [Clause 29(2)(a)] and even goods similar to those for which the trade mark is registered, [Clause 29(4)(b)].

The scope of infringement is even taken beyond the commercial domain into the democratic space of citizens through Clause 29(8) and Clause 29(9). Clause 29(8)(c) quite clearly is not related to the activities of the traders but to citizens’ action. Clause 29(9) so delineates infringement so as to bring within its ambit, apart from printed and written words per se, the spoken use of these words as well as their visual representation and reference. There is no way the Fundamental Right to the freedom of speech can survive such sweeping powers in the hands of corporations who want to use trade mark laws not just to monopolise markets but to use them to monopolise the very political space of civil society by silencing democratic movements for corporate accountability.

Another major shift towards lack of democratic functioning and public accountability proposed through the 1999 Bill is the criminalisation of civil offences. This Bill has added a new Clause vide Clause 115 which makes trade mark infringement a cognizable offence. In addition this Clause gives arbitrary power to police without cases of violation " likely to occur". Clause 115(4) states that any police officer…if he is satisfied that any of the offences referred to in sub-clause (3) has been, is being, or is likely to be, committed, search and seize without warrant the goods, die, block, machine, plate, other instruments or things involved in the offences, wherever found…. These far-reaching arbitrary police powers have no place in a democracy; they are a part of the economic arsenal being built to declare economic warfare against the people of India in the name of IPRs.