Nestle and Amul Locked in Row Over Trademark

Nestle India and Gujarat Cooperative Milk Marketing Federation (GCMMF), which markets its dairy products under the brand 'Amul' are locked in a row over using a trademark.

GCMMF has sent a legal notice to Nestle India stating about the trademark infringement when the latter launched its own brand of milk and yoghurt under the brand name-a+ (Plus), in December last year, sources privy to development said.

Amul has claimed in the notice that is has been selling fortified cheese under the brand 'Amul A+' since one year and high calcium milk labelled as 'Amul Calci+' since last four years, they said.

While, Nestle India has claimed that it was using the brand a+ (Plus) for its milk and yoghurt as it has purchased it from a person in North India.

"We are in talks with Amul over the alleged infringement of trademark, which we had purchased from a North Indian," a Nestle India executive said, preferring anonymity.

An e-mail sent to Nestle India for case details did not solicit response.

However, neither of the two leading dairy product marketing giants have moved court over the issue. They are still in dialogue and seeking an amicable solution to it through negotiations, according to sources.

"We are not commenting on the issue as negotiations are still underway with Nestle India over the trademark infringement issue," a top GCMMF functionary told PTI, on the condition of anonymity.

An executive of Nestle India said in an e-mail reply to PTI, "The A+ brand is legally assigned to us in accordance with accepted practices. We are currently in discussions with Amul and prefer not to comment further,".

The over Rs 9,700 crore brand Amul enjoys 25 per cent share in the country's organised milk retail and 70 per cent in the cheese market segment.
 

 

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New Requirements for Registration of Trade Marks in India

Controller General of Patents, Designs and Trade Marks dated 9th of January 2012 bearing no. CG/F/ Public Notice/ 2011/ 81. In a move to bring about accuracy of trade mark records and applications and to limit the potential for misuse of a broad claim in case of description of goods and services of a trade mark, the Controller General of Patents, Designs and Trade Marks has issued the aforementioned circular which requires Trade Mark applications to have the following information, failing which the Trade Mark Applications will not be processed henceforth:

1. Description of Goods / Services: Actual description of Goods /Services in respect of which the trade mark is proposed to be used or has been used should be mentioned and terms like "all goods/ services", "etc.", "all other goods/ services included in class……" , "goods/services not limited to ……….." shall not be entertained. Thus, when filing a trade mark application one should only mention those goods / services in respect of which the applicant is using / proposes to use the trade mark.

2. Names: The full names (initials are not allowed) of Proprietors in the case of a Proprietorship Firm, the full names of all Partners in case of a Partnership Firm, name of the Managing Trustee in case of a Trust and name of the person representing the society in the case of a Society, should be mentioned.

3. Date of USE: In the case of a claim of date of prior use of the trade mark, the actual date- consisting of the day, month and the year, when the trade mark was used should be given and not just the year and the month.

4. Translation/Transliteration: Proper translation/transliteration of the trade mark should be provided in the case of Non-English characters appearing in the mark.

5. Visibility of Trade Mark: The trade mark should be clearly visible.

The War Between Copyright and Remix Culture

If there’s one concept that has suffered more damage than just about anything else as a result of the Web and the ongoing explosion of digital media, it’s that of copyright: The idea that a content creator should have virtually unlimited control over his or her creation, regardless of what form it takes. As blogger Andy Baio notes in a recent post, the principle behind copyright has been taking a beating from “remix culture,” driven in large part by YouTube (GOOG) and other video sites. Is the rise of the YouTube generation changing the way we think about copyright—and if so, should we let that happen? Do we even have a choice?

Baio, a long-time digital journalist who blogs at Waxy.org and is also a former chief technology officer of Kickstarter and a staffer at Expert Labs, notes that a huge number of the users who post mashups and other video interpretations of popular music to YouTube seem to have only a hazy idea of what copyright is, or how it’s applied to works like the ones they are uploading. As he notes, there are close to a million videos on the site that contain phrases like “no copyright infringement intended” or invoke the “fair use” clause in U.S. copyright legislation. In the vast majority of cases, these videos are probably illegal under the current law.

Saying things like “No copyright infringement—I only put this up as a project” (as one video uploader who posted a version of the movie Pulp Fiction, reassembled in chronological order, did) has no real legal force or effect, as Baio points out. Whether fair-use principles would apply to these kinds of creations is a more difficult question to answer, since the definition of fair use is notoriously complex. The courts use the so-called four factors test, which assesses the nature of the re-use, the intent of the new work, and the impact this has on the original. But as Baio notes: “Under current copyright law, nearly every cover song on YouTube is technically illegal. Every fan-made music video, every mashup album, every supercut, every fanfic story? Quite probably illegal, though largely untested in court.”

There are a number of ways to look at this kind of activity: If you are a copyright holder or a lawyer or an organization such as the Motion Picture Association of America, you can see it as theft, pure and simple—and you can file thousands of takedown notices under the Digital Millennium Copyright Act (including some fairly absurd cases in which music appears in the background of a video), or push for even more regressive and punitive legislation like the proposed Stop Online Piracy Act, which would allow you to remove websites from the Internet permanently, among other things.
Remix Culture Becomes “Normal”

At some level, however, this approach arguably turns into a self-defeating strategy for the media and content industries. I think Baio is right when he suggests that the “remix culture” many of these YouTube users identify with is changing the way an entire generation thinks about copyright, for better or worse. (I would argue it is for the better.) For them, the “fair use” principle is far broader than the courts would probably define it. Who is to say they are wrong? Says Baio: “No amount of lawsuits or legal threats will change the fact that this behavior is considered normal—I’d wager the vast majority of people under 25 see nothing wrong with non-commercial sharing and remixing, or think it’s legal already.”

As I’ve pointed out before, my teenaged and older daughters experience popular media of all kinds through remixes of some sort or other. Whether it’s a TV show like Doctor Who or Glee, or a popular song, or movies such as those in the Twilight series, they are almost constantly sharing remixes, mashups, parodies, and other references through social platforms like YouTube and Facebook and Tumblr. Almost every one of these is probably illegal, although some might be covered by fair use if they ever went to court.

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