One of the major strategies of the misusers is to adopt famous/well known marks as a part of their trading style/corporate name. Obviously, the intention is to choose a name that is easy to recollect and gives the impression of being associated with a well-known company.
The common strategy among misusers is to slightly twist the name or add a descriptive suffix/prefix to the well-known mark. The boom in the Information Technology sector piloted the adoption of famous marks in the IT industry such as INTEL, PENTIUM, INFOSYS, DELL, and YAHOO.
In such cases, as the marks are being misused in the form of trade names therefore, the pressure is on brand owners to prove goodwill and reputation of their mark/corporate name to establish a case for false representation in the course of trade.
Recently in a dispute over the trade name "ATLAS", the Delhi High Court has restrained Atlas Products Pvt. Ltd from using ‘Atlas’ as a part of its corporate or trade name. A suit was filed by Atlas Cycles (Haryana) Ltd, the leading bicycle manufacturer, challenging the single judge order which restrained Atlas Products Pvt. Ltd from using the trademark ‘House of Atlas’ in respect of bicycles but allowed to use the brand name ‘Atlas’ as its corporate name. The matter is now in the Supreme Court for stay of the order of Delhi High Court. Atlas Cycles (Haryana) Ltd has been asked to file its reply as to why the High Court order against Atlas Products Pvt. Ltd should not be stayed.
It will be interesting to know what turn the case takes but the underlying question is that why and how companies are able to register famous corporate names in the first place.
In case of companies seeking registration with the Registrar of companies (ROC), the search system is not full proof and although only such company names are approved that are not identical with companies already registered. However, a misuser can overcome the objection by adding a prefix or suffix or by adopting a similar name/mark as opposed to identical mark. Also, the Companies Act has no provision to protect trademarks. Thus, an infringer can obtain a company name containing a well-known trademark to free ride on the popularity enjoyed by it.
In the instant case also, the Atlas Cycles (Haryana) Ltd contended that in 2002 they came across usage of trademark ‘House of Atlas’ with manufacturing & marketing of cycles. They further contented that they are the owners of the trademark since 1952 and prior to 2002 Atlas Products Pvt. Ltd using the trademark ‘House of Atlas’ was not engaged in any cycle related business.
Misusers cleverly adopting famous trade names and getting them approved from the Registrar and taking advantage of the fact that there is no provision to check if the desired company name is a registered mark or a well known trade mark and no requirement of clearance from the Trade Mark office has become a thing of the past. As per S. 158 of the Trade Marks Act, 1999 and the corresponding amendments made to Section 20 of the Companies Act, 1956, a company name that is identical to a registered trademark or a trademark, which is subject of an application for registration, may not be registered. The Registrar of Trade Marks would be consulted for confirming this.
The amendment to the Companies Act would enable the trademark holders to invoke administrative remedy under the Companies Act to have the infringing name removed from the Register.
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