In July 2016, the Delhi High Court restricted two Indian auto parts manufacturers to use Toyota's trademark TOYOTA, Toyota device logo, TOYOTA INNOVA and/or any other identical name on their products, and to trademark/commodity/in malicious Named PRIUS.
According to the observations of the distinguished court, the defendant's adoption and use of the trademark PRIUS was found to be "blatantly dishonest", "unauthorized and illegal", equivalent to diluting and counterfeiting the well-known trademark of the plaintiff.
As early as 2001, the famous Punjabi pop star Daler Mehndi questioned the registration of the domain name [dalermehndi.net] in the Delhi High Court and succeeded. Recently, many domain names have been controversial only because of their malicious nature due to their deceptive similarities with existing well-known trademarks. Some examples are the domain name "Marutisuzuki.com" [very similar to Maruti Suzuki], and "Newsony.com", which can be easily passed as "sony.com".
From refusal to register 'MAGGI'&'VOLVO' respectively for kitchen appliances, electrical and electronic equipment to limit the defendant's use of the PANADOL logo, although the brand's products are not available in India, Indian courts In many cases, malice is recognized as a valid reason in trademark litigation, although the number of cases is small.
So what is the malice of trademark litigation?
There is no correct definition because the phrase "malicious" is created, but it usually occurs when one party deliberately adopts and uses another's trademark [usually a well-known trademark] and redeems it with goodwill associated with the latter's trademark.
The court of Gromax Plasticulture Ltd v Don&Low Nonwovens Ltd [[1999] RPC 367 at 379] does attempt to define the same and stipulates that "Maliciousness includes dishonesty, which does not meet acceptable business conduct standards observed by reasonable and experienced people in a particular area under review".
Delhi High Court Manish Vij vs. Indira Chugh It is very succinctly defined as not only a wrong judgment, but "consciously doing something wrong with dishonest purposes."
According to the "Trademark Law", "malicious" was mentioned in 1999 as one of the relative grounds for refusal to register under section 11[10][ii].
The responsibility to prove dishonesty in a trademark infringement lawsuit is usually in the opponent, and in order to succeed in this case, the intent of the alleged infringer must be proved.
Some of the acts that constitute malicious in a trademark application are as follows:
· Hastily applied for registration of another party [but not registered] for used trademarks through improper or illegal means
· Obtain a large number of trademark registrations or register on the basis of intentional use, no bona fide Intent to actually use them [no legal interest]
This includes - transferring or licensing a trademark at a high price [as happened in the domain name dispute on http://www.arunjaitley.com, the defendant refused to transfer the domain name, but asked Mr. Jaitley to purchase the trademark at a high price]
Attacking trademark infringement cases against one party using them, and intimidating claims for false losses, etc.
· Obtain registration by deception [for example, using the false date of first use]
· Copy, imitate or translate well-known trademarks, whether or not they are registered in the country
• Applicants sell counterfeit products and other similar fraudulent activities.
Maliciousness is usually determined on the date the filing of the trademarked application is challenged; future evidence can only be accepted if it is basically supported and clearly persuasive. Usually all applications are first considered to be submitted in good faith, so there is a need for convincing evidence to prove a malicious case, which must be proven by the accused in a balance of possibilities.
This is an incomprehensible basis because determining malicious tests involves weighing various subjective and objective factors, such as:
· The mental state of the applicant at the time of submitting the application
· Does he know that the other party has used the trademark for a period of time in business?
· The true intention of his application is to prevent/drive third parties away from the market or to actually use the trademark
· The degree of uniqueness of third-party trademarks and the extent of market awareness on the date of competition application
· Other peripheral factors need to be considered, such as the nature of the trade/business handled by the parties, the degree of similarity between the trademarks, etc.
The criteria for proving malice are not too high, but they are required to appear to be unscrupulous and fraudulent at the outset, as well as those who "apply appropriate standards", which are primarily relevant to the particular industry involved.
It is safe to say that there is no correct way to determine the registration of a malicious trademark; any or all applicable factors and benchmarks can be used to prove whether an application meets the conditions for malicious registration, depending on the circumstances of the case before the court.
Orignal From: Proof of "bad beliefs" in trademark litigation
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