Food and Trademark

We all have taken a snap of those delicious dishes and lip-smacking snacks. In the world of Snapchat and Instagram where even food becomes a model, looking absolutely delicious and hard to resist. With all the e-commerce websites and various online platforms, we can try so many varieties and range of products. Food industry is always blooming and with the youth wanting to try new things everyday it has proved to be more accelerating for the same. But what if you come across your favourite snack in a different packaging and being a lot cheaper, wouldn’t you feel like buying the new product? Most people would try the new product. But what we are missing here is the new product with the same ingredients is taking over the original product and thereby decreasing the original products sale and at the same time infringing the trademark of the brand

As per Section 28 of the Trademark Act, 1999, the purpose of registration is to grant an exclusive right to the person who has registered it.

How is trademark for food products registered?

Searches[1]

Looks for indistinguishable imprints, phonetic reciprocals, and gadget imprints can be completed in the Trademarks Registry’s online records.

Examination[2]

The enlistment centre looks at the imprint and may convey to the candidate any issues with it through a merged assessment report.

Opposition[3]

Resistance can be recorded inside four months of the imprint being distributed in the Trademark Journal. Anybody may restrict or question an enlistment on the grounds of conceivable trickiness, disarray, weakening, or clarity.

Registration[4]

On the off chance that the imprint is unopposed or the restriction excused, it continues to enrolment. The candidate may pull back the application whenever the resistance continues. Section 91 of the Trademarks Act accommodates an intrigue against a request or choice of the recorder to the Intellectual Property Appellate Board.

In the case of Aachi Masala Foods Pvt. Ltd vs Aachi Cargo Channels Private Limited[5], the common word was “Aachi” which means grandmother in Tamil. In this case, Aachi Masala Foods Pvt. Ltd said that Aachi Cargo Channels Private Limited has infringed its trademark and thus is liable for compensation. Madras high court in this case held that the word “Aachi” is very common in nature and there cannot be a monopoly over the usage of this word. Similarly, in the case of Bhole Baba Milk Food Industries Ltd v. Parul Food Specialities (P) Ltd[6], Delhi high court held that the word “Krishna” in India is as common as the word “John” in the west, thus one company cannot establish a monopoly over it and it dismissed the case of trademark infringement.

FSSAI regulations on Food Trademark:

In the year, 2018, The Food Safety and Standards Authority of India released a few regulations on the food trademark. These Regulations have been formulated with the primary intention of curbing the use of vague/ open-ended/ misleading words/ phrases by food businesses to sell and market their products, without any tangible or concrete basis for the statements made in this regard.[7]

The regulations also regulate the use of a few adjectives and prescribes conditions for their usage. Of these adjectives, emphasis for the purpose of the article, has been placed on the regulation of words as ‘Premium’, ‘Finest’, ‘Best’, ‘Real’, ‘Traditional’ and ‘Original’ that commonly form part of product taglines which may be registered as trademarks under the Trademarks Act, 1999 (“Act”). The regulation of the use of these adjectives may pose a possible conundrum, specifically in relation to existing trademarks and considering that specific and exhaustive criteria already exist for the registration of taglines under the Act.[8]

The underlying test for registration rejects those applications which consist exclusively of marks or indications that are solely descriptive of, inter alia, the kind, quality, quantity, intended purpose, values, geographical origin or other characteristics of the goods. Therefore, if a product tagline in question is merely a combination of words that are only descriptive of the product, it cannot be registered as a trademark in India. [9]However, if a descriptive tagline acquires secondary meaning and is identified with a particular product, it may be registered as a trademark. To acquire secondary meaning, an average man of ordinary prudence and imperfect recollection must associate the mark with the manufacturer/ seller rather than the underlying product itself. For example, “Two-Minute Noodles” describes noodles that may possibly require little cooking time and is therefore descriptive but the same has also acquired a secondary meaning in the mind of the consumers as they associate the same with “Maggi Two-Minute Noodles”.[10]

[1] Rachit Garg, Trademark infringement in the food industry in India, ipleaders, December 12, 2020, https://blog.ipleaders.in/trademark-infringement-food-industry-india/

[2] Supra 1

[3] Supra 1

[4] Supra 1

[5] Aachi Masala Foods Pvt. Ltd vs Aachi Cargo Channels Private Limited,2013 SCC OnLine Mad 3382.

[6] Bhole Baba Milk Food Industries Ltd v. Parul Food Specialities (P) Ltd,2011 SCC OnLine Del 4422

[7] https://fssai.gov.in/upload/media/FSSAI_News_Product_ETRetail_05_12_2018.pdf

[8] Supra 7

[9] Supra 7

[10] Supra 7

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

Do follow me on Facebook, Twitter Youtube and Instagram.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com

We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.