Today, I'm going to rant about why nobody has deemed it necessary to supply some context - explanations, illustrations, examples, something - to the words "other matter of a non-distinctive character which does not substantially affect the identity of the trademark" in Section 15(3)(c) of the Trade Marks Act, 1999.
I. Given that Section 15(2) requires every variation/representation of a series trademark to independently satisfy objective trademark criteria and given that Section 15(3) says "may be registered as a series", does the law even contemplate a situation where a series application is necessary and not merely more desirable/appropriate than a set of individual applications covering every different variation/representation?
II. Isn't a literal reading of Section 15(3)(a) rendered redundant purely by the facility (and I use that word carefully) of a multi-class application for the same trademark?
III. Is the reference to "other matter" in Section 15(3)(c) to be ejusdem generis'd with (a) and (b) (which cover the statement of goods/services and statement of number, price, quality or names of places respectively)?
IV. If so, given that (a) and (b) are independent criteria, how exactly is ejusdem generis to be applied in this case?
V. Assuming broad brush-strokes on the ejusdem generis, how does fixing different numbers on the same base trademark or prefixing/suffixing names of places on the same base trademark colour the "does not substantially affect the identity of the trademark" bit in Section 15(3)(c), in light of Carlsberg v. Radico Khaitan and Section 9(1)(b) respectively?
VI. Speaking of colour, does the inclusion of "colour" as an independent, later criteria under Section 15(3)(d) mean that it is not within the contours of "other matter of a non-distinctive character" in Section 15(3)(c)?
If so, (1) on logic alone, why? (2) how is it to be reconciled with Section 10?
VII. Assuming even half-decent answers to all of the above questions, where does that leave the basic "resembling each other in the material particulars thereof" standard for a series trademark?
Isn't it astonishing how a seemingly straightforward, rarely used 112-word sub-section can serve as the point of departure for endless discussion? It hasn't escaped my attention that the way I've framed these seven questions would fit snugly into an exam paper/hypothetical (complete with the entirely unnecessary Roman numerals). You have been warned. :-p
No comments:
Post a Comment