ASCI and K&S Partners Release White Paper on Unfair Trademark Practices
ASCI and K&S Partners recently released a white paper titled “Misleading Advertisements and Trademarks – A Registration Conundrum”. This document identifies the practice and instances of brands making misleading claims and representations through the use of trademarks.
Companies have often been found to register misleading or even misleading descriptive or laudatory terms, slogans, etc. as trademarks. These words describe the unsupported nature, quality or quantity of the product, which ends up misleading the consumers. For example, a sweater brand called “All Wool” implies that it is made of wool. However, if the actual products are not made from 100% wool, such a mark can become misleading. Similarly, a product branded “Wholewheat Marie”, which contains refined flour as the dominant ingredient, misleads consumers about the health and nutritional values of such products. Use of such marks that falsely describe product attributes is a potential violation of both consumer protection law and ASCI.
Brands and advertisers often cite trademark registrations as a defense, these words or phrases mislead consumers. However, this article argues that such a defense is invalid because making misleading statements violates ASCI, consumer protection law, and trademark law itself. The document calls for greater scrutiny and restraint in allowing trademarks descriptive of brands, and to ensure that those brands are not a misrepresentation of the product.
Manisha Kapoor, CEO and Corporate Secretary of ASCI, said: “At ASCI, we see cases where the advertiser uses a trademark registration to defend their direct or implied claims, claiming that a trademark registration means that the claim is legally valid. This is not true, and we ask brands to be careful when using false, exaggerated or misleading phrases to describe their products, whether or not they are registered trademarks.
Prashant Gupta, Partner, K&S Partners, said: “The problem with false, unsubstantiated and dishonest advertising, under the guise of descriptive or laudatory marks, is serious. Protecting consumers against deception is one of the main principles of the ASCI code, trademark law and consumer protection law. The Trademark Office must raise the threshold for descriptive or laudatory marks, otherwise the protection of consumer rights against fraudulent marks and informed decision-making would be seriously undermined.
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