Trademark : Principle Of Territoriality In The Virtual World

Introduction

The increased competition among traders and trading companies in the world of commerce led to the development of the trademark concept. A trademark helps differentiate one product or company from another, making it easier for a customer to identify that product or company. The blog focuses on the trademark system’s territoriality principle. The innovations have a number of similar legal foundations and are focused on the usage of a trademark as a symbol on the Web, for instance in meta tags or domains names. These have a lot to do with the territorial nature of trademark law when it comes to trademarks that are used on a global medium like the Internet.

Trademark Application Via The Internet

In certain countries where trademark protection depends on past use of the sign in that country, the issue as to whether service on the Internet may meet such a usage criterion and, if so, what sort of use would constitute “genuine use” emerges. It seems that, for the sake of the usage criteria, using a brand over the Internet may count as “genuine use.” The owner of the trademark must demonstrate that the brand was used in that market, for instance, by demonstrating sales data or other economically driven connections with clients in a nation. This can be challenging if the trademark holder only provides products or services online, especially if they are given away for free, as with web search engines, which have minimal to no real presence offline.

Trademark

[Image Source : Shutterstock]

A sign will only be deemed to have infringed a trademark when utilised online and only if it was performed in the nation where the brand is secured. It’s unclear, what conditions using a trademark that appears online in a specific context might constitute trademark infringement. Both a general and a detailed definition of infringement are possible. According to the broad meaning of the phrase, an infringement occurs when a sign is made available on a computer screen in the nation where a comparable claim is made. Then, a trademark’s exclusive right would have practically a global impact.

Acceptable Unauthorized Use

Legal rules may allow for such “fair use” of a sign which is safeguarded as a trademark if it’s used honestly and in good faith for solely descriptive or informational purposes. Furthermore, it is commonly stated that the usage of the sign should not imply support or sponsorship by the trademark holder and should not go beyond what is necessary to identify the individual, organisation, or item. These exceptions might also be valid for using a sign online. A non-commercial environment or use that is covered by the freedom of speech, such as customer dissatisfaction with a specific trademark, are further instances of allowed unlawful trademark use.

Since procedures differ from nation to nation, internationally standardised standards could increase predictability in this situation for the advantage of those involved in electronic commerce. It is neither practical nor acceptable to try to control every new way of employing a distinctive online identifier. To be technologically impartial, any endeavour may merely seek to develop broad principles for separating proper and improper conduct. There are two approaches that could be used in this situation: One might either attempt to create standards for unacceptable use or provide a general description of the kinds of “fair use” that all nations might deem appropriate on its soil.

Global Effect Of Injunctions

The extent of a trademark right is established by stating the rights holder’s potential remedies in the instance of a violation in addition to describing if a trademark right is violated. The concern about whether the trademark owner should be able to request, with the aid of the courts, that the defendant halt all usage of the sign on the Internet arises in the case that a trademark right has been infringed through the use of a sign on the Internet. Such a court order would have an impact that would be comparable to the reach of the Internet.If classical trademark law is going to be extended into the cyber, a national (and hence territorially limited) trademark right should not offer ascent to an exclusive right throughout the global reach of this platform. It would be proper for a methodology to be as restricted to the area where the owner has an exclusive right as is physically possible. Courts may need to devise novel ways to define equitable relief, such as mandating that anyone using a sign online take reasonable precautions to avoid coming into contact with any territory over which the trademark owner has exclusive rights. This could be achieved, for example, by including sufficient revelations on the website (like the above-said disclaimers), by using technical tools to block Internet users based in a specific country from visiting the site, or just by denying to ship goods or provide services to clients residing in a specific territory. Concurrent users might also be encouraged to share a message-passing page or portal or to provide connections to their individual websites.

However, it would be incorrect to entirely rule out the possibility of using global injunctions. It may be appropriate to outlaw all uses of the competing sign on the Internet in order to stop them from impacting the area(s) in which the trademark is protected and to stop them from infringing on the trademark holder’s legitimate interests. This is especially true in situations within which the usage of a sign just on the Internet had also maliciously and purposefully aimed a trademark right.

Co-Existence Of Rights On The Internet

On the Internet, in which a sign might be viewable on computer screens (or even other electronic devices) all over the world, this cohabitation can be more challenging. This is due to the jurisdictional of trademark rights, which permits various owners who are totally irrelevant to one another to have similar or misleadingly similar trademarks in different nations. The operator of a trademark on the Web may get embroiled in a conflict in a foreign country if the law there grants rights to someone else but does not recognize the user’s ownership of the challenged trademark. Rights that formerly coexisted in the actual world are now in competition with one another on the Internet.

Contradicting rights holders may try to stop each other from incorporating their mark on the Internet with the help of one‘s national courts, for example, if one trademark holder has obtained an injunction against the competing user in its jurisdiction and that user, in turn, has done the same in its jurisdiction. Conflicting right holders may make an effort to prevent one another from utilising their sign online. In order to give legitimate right holders a few guarantees that they will be allowed to use their trademarks on the Internet without even being exposed to lawsuits brought against them by right holders in other jurisdictions, it would seem that this problem must be addressed at its origin, which is trademark law.

Conclusion

Whenever a trademark is utilised online, it is obvious that people from all over the world may see it right away and assume it has an international influence. Due to this special feature of the Internet, it is difficult for enterprises to foresee in what countries their business activities may become subject to legal scrutiny. Due to the peculiarities of Internet technology, it is usually difficult to incorporate the “use” of a trademark here on the Internet into traditional legal ideas of physical usage.

Author: Ridhi Jindal pursuing B.A.LL.B (5th year, Semester -9) from Government Mohindra College, Patiala, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

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