What was the case?
- The trademark case was filed by Facebook against a bakery in Delhi called ‘FACEBAKE’.
- It was also informed to the court that the bakery was selling cakes and articles like watches with the mark of FACEBAKE. The bakery is also running a website which is called 'www.facebake.in'.
- Mr. Parvin Anand, who appeared for Facebook, filed an infringement of trademark case and also supported the maintainability of the suit before the court.
What is Trademark & its procedure?
- In India, the ownership of trademark determines the first-to-use basis. The first-to-file basis is commonly used in patents or design rights. A trademark is a symbol or word which is applied to the article of commerce in order to stipulate the consumer that particular person or his company has produced or dealt in with that particular product.
- The common principle behind making determinants of trademark is that one party should not benefit from the labour of another party.
- The term of an authentic trademark registration is for a period of 10 years. The mark can easily be renewed further for another 10 years.
- The trademark application can be made through a TM-1 form along with a fee of 2500/- given at the registry office. The application is then checked to determine whether or not the trademark is in conflict with the existing or pending to registered trademarks.
- If it is accepted, then it is published in Trade Marks Journal to allow others to oppose, if no one opposed to the trademark, then it’s registered and the certificate is issued.
- Unregistered trademarks with prior existence can be protected under common laws in India. The passing off of trademark is an actionable tort under common laws in India.
What is the infringement of Trademark?
- Trademark infringement is the violation of the rights of a person or company against their registered trademark without their authorization.
- Infringement occur when the infringer uses the identical trademark which is somewhat similar to that of registered trademark in relation to the sale of similar products and services.
- In a typical passing off case, the court will determine whether the plaintiff is the original owner of trademark or not? Whether or not there exists a different image of plaintiff’s product or services in the mind of consumer? And finally, whether or not there's a misrepresentation from the side of defendant and if that misrepresentation is causing confusion in the minds of consumers.
- Remedies are also available against the infringement. There are: Injunctions/ stay against the use of trademark, recovery of damage, accounts and handing over of profit, application under order 39 rule 1&2 of CPC for grant of temporary/ ad interim ex-parte judgement.
Order of High Court
- The court ordered the bakery, its agents and its employees to not use the mark “FACEBAKE” or any other mark which is anywhere similar to plaintiff’s mark.
- The single judge bench of Delhi High court, comprises of Justice Rajeev Shakdher has pointed out that if the interim relief is not provided to the plaintiff, Facebook’s legal right and business interests will ultimately get impacted.
