Trademark Law is essentially designed to protect the identity of a corporate brand from the unauthorized exploitation, likely to lead to consumer confusion or the depletion of brand equity. In India, the Trade Marks Act of 1999 is the legislation through which trademark rights are safeguarded by an erected regulatory framework designed to shield well-established and distinctive trademarks from acts of infringement.[1] This legal provision has the most importance under the consumer goods umbrella where many companies work in similar markets selling related products.
One of the trademark jurisprudence areas that has, in recent years, attracted much scholarly attention is known broadly as “hush products[1] .” As indicated by the subtle nomenclature, hush products refer to a specific type of merchandise especially designed to meet the private, personal, or sensitive needs of a specific group of consumers.[2] Due to the inherent properties of these products and the exact situations in which they are used, the consumer often strives to maintain confidentiality and privacy while using such products.
These products are sold under brand identifiers or packaging that resemble famous trademarks or known trademarks, often for the purpose of confusing consumers into false belief that they are purchasing products from a reputable or well-known entity.[3] Such practices not only don’t pass the test of ethics but also violate trademark law in glaring terms. This issue is compounded when it comes to a well-established trademark with a significant market presence and consumer confidence. In this regard, this discussion looks at the implications of trademark infringement, especially within the hush products sector, for firms operating within the consumer goods industry focusing on key legal issues and the impact on brand protection.
The Importance of Trademark Protection
Trademarks in the modern marketplace serve as an important tool for businesses to distinguish their products or services from their competition. A trademark is more than the name or logo designation; it represents the prestige, quality, and trust that a company has earned with its customers. It also becomes important for businesses to protect trademarks in order not to allow others to use the equity of their brands in unfair competition.
The Trade Marks Act of 1999 describes all the requirements that must be satisfied to acquire trademark protection in India’s legal framework. According to this[2] , a trademark is considered to be an identifier that is capable of distinguishing the products or services of one entity from those of others.[4] Section 29 of the above Act defines when a trademark shall be held to be infringed including: Where a mark, is identical with or similar to or is identical or nearly resembles to a registered trademark and is used in relation with goods or services similar to that in respect of which the trademark has been registered.[5][3]
According to Section 11 of the Trade Marks Act, 1999:[6] an application for a trademark may be refused based on relative grounds for a mark proposed as identical with or seriously deceptive of a pre-existing registered trademark and proposed to be used in relation to analogous goods or services so that there is liable to result public confusion. This provision serves to safeguard the rights of the trademark proprietors who exist now by preventing any overlapping in branding that could possibly mislead consumers regarding the origin or association of goods and services.
Under conditions of consumer goods, where many businesses offer almost identical products, the chances of consumer confusion become extremely high. Whenever there is any infringement of a trademark held by a company, consumers would unwittingly purchase a product assuming that it is coming from a well-known brand, thereby causing grave injury to the reputation of the original brand.[7] This phenomenon is particularly marked within the sphere of counterfeit products-items sold under fake brand names or packaged in deliberately confusingly similar guise to attempt to capture some of the foregoing goodwill that it has amassed through the use of legitimate branding[4] .
Many times, counterfeits surface in areas of significant brand equity and high demand. Examples of such sectors include the following:
Luxury Goods: Pirated designer handbags, watches, and clothing are sold under false brand names for the prestige of the brands.
Electronics: Pirated cell phones and other electronics, such as chargers, use the reputation of respected brands like Apple or Samsung.
Pharmaceuticals: Counterfeit drugs are manufactured to mimic prescription medications and therefore endanger health.
Consumer Goods: Counterfeit cosmetics, perfumes, or packaged foods are sold under similar brand names to deceive the public.
Automobiles: Aftermarket parts are sold under the name of OEMs to create an impression of association.
The Issue of Hush Products in Trademark Infringement
The term “hush products” describes those goods that are marketed with labelling, names, or packaging that closely resembles a well-known and respected brand, often to such an extent that consumers may mistakenly assume that these goods are sponsored by or made by the aforementioned brand. The basic design intent for these products is to resemble the look, sound, or feel of a respected product, creating thereby a level of ambiguity for consumers’ perceptions.
Hush products make trademark infringement litigation truly peculiar. Due to the fact that these commodities often have similar names, emblems or logos, such commodities have the potential to cause a lot of confusion among consumers. This kind of disarray is particularly worrisome when the marks are well recognized and highly trusted.[8] Those firms in the consumer goods industry that have spent substantial amounts of money building their brand equities are vulnerable to have those equities destroyed when the competitors reproduce their trademarks.
Although the complaints are more on hush products, one can still ask if there’s a likelihood of confusion among the consumers between the marks or the packaging. Judges have looked at many factors in determining whether there indeed was an infringement:[9]
Comparison of Similarity: The courts establish whether the mark of the party who committed the infringement is either identical or deceptively similar to the trademark.
Similarity of the Goods or Services: Infringement can be proved if the goods or services associated with the infringing mark are either identical or similar to those offered by the owner of the original trademark.
Probably, the most important factor that determines whether trademark infringement exists in a case is likelihood of confusion. Under this approach, the courts have to make a determination of whether consumers will probably believe that the products come from a common source or, alternatively, that they are associated in some way.
Reputation and goodwill: Known trademarks are provided greater protection under Indian law, allowing owners to reserve the right to prevent the use of marks that would adversely affect the reputation of their valuable brands, even if the offending goods are not identical.
The high hurdle in such cases of hush products is to prove similarity of marks or packaging that is likely to cause confusion, which may result in various adverse consequences, including loss of consumer confidence or dilution of brand equity.
Consumer Confusion and the Likelihood of Damage
Consumer perception is inevitably ambiguous in trademark infringement cases, and in determining infringement, courts evaluate whether an ordinary consumer would likely confuse the goods themselves based on the similarity of the trademarks;[10] this concern is certainly most acutely presented where goods are often promoted on the strength of brands and customer loyalty.
In highly competitive markets, corporations go all out with huge resources to develop brand systems to distinguish themselves from their competitors. Brands are inextricably tied to certain standards of quality, customer experiences, and even consumer trust. But when one’s competitor unintentionally, yet uses a very nearly identical trademark, it may lead consumers to buy a product they didn’t intend to buy.[11]
Another factor making the likelihood of confusion worse is if the product is a copy. Most copies try to leverage upon the reputation already associated with a famous brand, thereby creating confusion through the use of imitations of colour schemes, logos, or even names of products.[12] This practice dilutes the uniqueness of the brand and may cause major financial loss to the owner of the original brand.
Trademark Protection in India: Legal Framework
The Indian legal framework also permits different kinds of trademark protection mechanisms. As provided in Section 11 of the Trade Marks Act (1999),[13] marks deceptively similar to an existing trademark can be challenged on the ground of infringement. In fact, Section 29 explicitly deals with infringement,[14] which provides that a trademark is infringed if it either poses a similarity or is identical with or without some differences to a registered trademark in respect of similar goods or services and would likely cause confusion to the public at large.
Furthermore, it extends more protection to famous marks. Even if the goods or services are not alike, a mark that has been known can be protected since its use by a third party will be considered likely to cause confusion to the point of watering down the recognisability of the mark or giving an unfair advantage.
Legal Remedies for Trademark Infringement
If the trademark of a particular entity is infringed upon, then it can seek redress from the courts in several ways, which are discussed below:[15]
Injunctions: An injunction can be passed by the court that would restrain or enjoin any further use of the offending mark. Traditionally, injunctions are considered to be the first instance of remedy when any party alleges infringement of their trademark.
Damages: The trademark owner may further claim damages for losses caused by reason of the infringement. These include direct financial loss and damage to the reputation of the trademark.
Account of Profits: The courts may direct the infringer to pay over any profits made by reason of using the infringing mark.
Destruction of Infringing Goods: The courts may, in some instances, order the destruction of infringing goods to restrict them from entering into commerce. Such remedies should ensure to make the registered trademark owner whole by the prejudice caused by the infringement and prevent future offenses.
Conclusion
Trademark infringement is one of the significant threats in the consumer goods sector. In the hush products industry, the efficacy of brands in preventing confusion, loss, and economic damage could easily be compromised by strongly established trademarks. The law governing trademark protection in India is sufficiently resourceful to deal with such challenges, but corporations need to take severe notice of protecting their intellectual property rights.[16]
Traditionally, doctrines of trademark infringement contain examination for similarity, likelihood of confusion, and protection of famous brands. These doctrines provide a more effective tool to businesses for safeguarding their rights in trademarks as the marketplace continues to evolve[5] . Businesses must, therefore, know the legal protections available to them and devise preventive mechanisms to protect their trademarks from unauthorized use and copying in the market.
The principles regarding “average consumer” and “initial interest confusion” prove especially powerful tools for preserving trademark rights in dynamic markets, particularly in the area of “hush products,” where confidentiality and discretion are vital. In such contexts, consumers are less likely to undertake thorough analysis, making it easier for confusion to arise. By maintaining a low level threshold of establishing confusion, courts give stronger protection to trademarks that will allow businesses to prevent persons from using an identical mark to perpetuate businesses, even though the consumers’ purchasing decision may not be typical in the established marketplace.[17]
[1] Trade Marks Act 1999 (India)
[2] Prachi Agarwal & Aditi Srivastava, Likelihood of Confusion Under India’s Trademark Law for ‘Hush’ Products, LAW.ASIA , https://law.asia/india-hush-products-trademark-law.
[3] R Bhushan, ‘Trademark Infringement and the Doctrine of Passing Off in India’ (2020) 44 Journal of Intellectual Property Rights 45.
[4] The Trade Marks Act, No. 47 of 1999, § 2(1)(zb).
[5] Trade Marks Act 1999, s 29.
[6] The Trade Marks Act, No. 47 of 1999, § 11.
[7] Cadbury Schweppes Pty Ltd v Pub Squash Co Pty Ltd [1981] 1 All ER 213.
[8] Lotte Anemaet, ‘Which Honesty Test for Trademark Law? Why Traders’ Efforts to Avoid Trademark Harm Should Matter When Assessing Honest Business Practices’ (2021) 70 GRUR Int 1025 <https://doi.org/10.1093/grurint/ikab079>.
[9] Sahana Simha and M P Ram Mohan, Trademark Proprietor’s “Moral Right” as an Exception to the Doctrine of Exhaustion of Rights in Trademarks (2024) WP-2024-09-01, Indian Institute of Management Ahmedabad <https://www.iima.ac.in/sites/default/files/2024-09/WP-2024-09-01.pdf>.
[10] George Miaoulis and Nancy D’Amato, ‘Consumer Confusion & Trademark Infringement’ (1978) 42 Journal of Marketing 48 <https://doi.org/10.2307/1249885>.
[11] Lisa P Lukose, ‘Consumer Protection vis-à-vis Trademark Law’ (2013) 1 International Journal on Consumer Law and Practice 8.
[12] Judith Lynne Zaichkowsky and Richard Neil Simpson, ‘The Effect of Experience with a Brand Imitator on the Original Brand’ (1996) 7 Marketing Letters 31 <https://www.jstor.org/stable/40216391>.
[13] Trade Marks Act 1999, s 11.
[14] Trade Marks Act 1999, s 29
[15] Mandour & Associates, ‘Trademark Infringement Remedies’ (Mandour & Associates, 2023) <https://www.mandourlaw.com/trademark-infringement-remedies/>.
[16] World Intellectual Property Organization, ‘Trademarks’ (WIPO, 2024) <https://www.wipo.int/web/trademarks#:~:text=Trademarks%20are%20protected%20by%20intellectual,and%20paying%20the%20required%20fees>.
[17] Bhuwan Sarine, Trademark for Hush Products: Is There Greater Likelihood of Consumer Confusion?, SPICYIP, https://spicyip.com/2024/10/trademark-for-hush-products-is-there-greater-likelihood-of-consumer-confusion.html.
Authored by: Abhigyan Choudhary
Student at National Law University, Visakhapatnam
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