Kriti Chaturvedi, HNLU, Raipur Rishika Nagpal, SLS, Pune Rakesh Lakra, JLU, Bhopal
A trademark is basically a recognizable insignia, phrase, word, or symbol that signifies a particular product and legally differentiates it from all other products of its kind. A trademark exclusively denotes a product to be belonging to or associated with a specific company and designates the company’s total ownership and association of the brand.
The essence of a trademark is that it protects the words and design elements or a particular mark that identifies the source, owner or developer of a product or service—especially one that customers come to associate with the service’s or product’s goodwill—and restrains any other individual or entity from using it for their own beneficial purpose.
Trademarking however, contains some vague boundaries, because it prohibits any marks that have even as much as a “likelihood of confusion” with an existing one. A business thus cannot use a symbol or brand name if it looks similar, sounds similar or has similar meaning to one that’s already registered, even more so if the products or services are related in nature and reception.
Trademark infringement as per Section 29 of the Trademarks Act, 1999, is defined as a use of a mark by an unauthorized or an authorized person who has not registered the mark, which is identical or deceptively similar to the trademark in relation to the goods or services to which the trademark is registered.
The issue of trademark dispute recently came up in a high profile case, involving the large disinfectant and antiseptic manufacturer, Dettol. In the case referred to popularly as Dettol v. Devtol, the suit was filed by the Reckitt Benckiser (India) Pvt. Ltd., manufacturers of antiseptic, who sell their products under the registered trademark and the logo of the popular brand name ‘Dettol’ against a Mohit Petrochemicals Pvt. Ltd. for selling their hand sanitizers and antiseptic products under the name of ‘Devtol’ which was deceptively similar to the brand name ‘Dettol’. The plaintiffs contested that this was a trademark infringement in the Delhi High Court.
Where the plaintiff prayed for a permanent injunction to be granted to stop the passing off of their goods, the defendants submitted that they had stopped manufacturing and selling their sanitizers under the mark “Devtol”, had withdrawn their application for the infringing mark from Trade Mark Authority and had conveyed their agents and dealers to withdraw the product from the market. The defendants argued that in the present environment of a pandemic, producing sanitizers and related healthcare products was a need.
The judgement was passed in the Delhi High Court by a single-judge bench comprising Justice Rajiv Shakdhar. The Hon’ble High Court had ordered the company to not to use the mark ‘Devtol’ for trading, selling or manufacturing of its hand sanitizers or any other product, since it is in violation of the act’s provision and is an infringement of the trademark ‘Dettol’, a well known antiseptic with great marketing and highly reputed. The court passed the decree of Permanent Injunction along with imposing the fine of Rs. 1 lakh on the ‘Devtol’ manufacturers and hence ordered that the amount should be deposited by the manufacturers within a week to Juvenile Justice Fund, maintained in the name of Registrar General, High Court of Delhi.
This order was passed after the defendant (Mohit Petrochemicals Pvt. Ltd.) made the statement that they would not manufacture or sell their products under the infringing mark ‘Devtol’ and also stated that the company had already initiated the withdrawal of the infringing mark and has already informed its agents and dealers for the withdrawal of the products. 
WHAT THE JUDGEMENT ENTAILS
Pursuant to Section 11(1) of the Trademarks Act, 1999, “A trade mark shall not be registered if, because of its identity with an earlier trade mark and similarity of goods or services covered by the trade mark; or its similarity to an earlier trade mark and the identity or similarity of the goods or services covered by the trade mark, there exists a likelihood of confusion on the part of the public, which includes the likelihood of association with the earlier trade mark.”
Here “similarity to the registered trademark” is used to indicate deceptive similarities as defined in Section 2(1)(h). It must be noted that sub-section (2) of Section 29 indicates the infringing mark should cause confusion to the public, thus with regard to the former section the phrase “similarity to the registered trademark” can be deciphered to indicate that infringing trademark possesses such similarities to the registered trademark which gives rise to confusion on the part of the general public.
In the present case that is Reckitt Benckiser (India) Pvt. Ltd V. Mohit Petrochemicals Pvt. Ltd. & Anr., both the conditions specified in the second sub section of section 29 are satisfied. The conditions are given as follows:
1) The infringing mark is used to trade a similar line of goods that is similar category soap & hand sanitizer.
2) The public is likely to confuse Devtol to Dettol.
3) The well known trademark Dettol has acquired a good reputation in India and a purchaser may naively associate Devtol to the registered mark.
It is evident that all these categories have been satisfied plentifully. Dettol has found itself in such cases several times, where another company has tried to monetize their goods by passing it off Dettol’s with a confusingly similar trademark or logo.
Also infringement under section 29(9) can be attracted due to the uncanny resemblance in spoken usage and written representation of Devtol to the well known trademark Dettol.
A case similar to this was decided in February, last year. A similar judgment had been obtained in the case of Hindustan Unilever Limited v. Utkarsh Somani & Anr. where the defendants were selling their soap by the name LIKEBOY’ and ‘LOVEBOY’ which is undeniably similar to the well known trademark of the plaintiff’s soap ‘LIFEBUOY’. The court in this case held that the defendant has infringed the trademark of the plaintiff and further, passed an interim injunction in favour of the plaintiff.
Thus, the current judgment rightly dealt with the infringement of the plaintiff’s trademark. Further, it can be observed that there are numerous deceptive brands which could be confused with well known trademarks and water down their significance. Hence, while the judiciary can be trusted to safeguard the goodwill of reliable healthcare products - especially in an era when they are most desperately needed - it is also advisable that the public should investigate and ensure that the purchased product is an original one.
Carla Tardi, Trademark, Investopedia (June 2019) https://www.investopedia.com/terms/t/trademark.asp#:~:text=A%20trademark%20is%20a%20recognizable,company's%20ownership%20of%20the%20brand.  Naina Agarwal, Delhi HC: Dettol wins Trademark Infringement suit against 'Devtol', Lawsisto (5 June 2020). https://lawsisto.com/legalnewsread/NTQyNA==/Delhi-HC-Dettol-wins-Trademark-Infringement-suit-against-Devtol.  Legal Era News Network, Delhi HC: Dettol wins Trademark Infringement suit against 'Devtol', Legal Era Online (3 June 2020). https://www.legaleraonline.com/news/dettol-wins-trademark-infringement-case-in-delhi-hc-against-devtol  GA No. 297 of 2019 with CS No. 21 of 2019