BIG BASKET VS. DAILY BASKET
On 17 February 2021, Big Basket sent a notice to Daily Basket regarding the infringement of the trademark. According to Big Basket the word ‘Basket’, in the name of Daily Basket may confuse the consumers by thinking that they are like the subsidiaries of Big Basket.
According to Section 2(1) (zb) of Trademark Act, 1999, “means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include the shape of goods, their packaging, and combination of colors.”
In this case, the main characteristics of the Trademark are its color, design theme, packaging, etc. and the trademark of Big Basket is very different from Daily Basket. In a popular case of Sky Enterprise Pvt. Ltd. v/s Abaad Masala &Co., the Plaintiff state that Defendant cannot use the similar composition as the Plaintiff has registered for their products. Also in Mitsubishi v/s Fiat, the Court states the Mitsubishi can use the ‘Lancer’ which is a registered trademark on their cars. But Fiat cannot use the ‘Cost Lancer’ in their cars as they are visually identical.
According to Intellectual Property Appellate Board, in 1A Pharma GMBH v/s The Joint Registrar Trademark, “by considering a part of a word in a trademark it’s better to use the whole name to check similarity or dissimilarity. Similarly, in this case, by only considering the word ‘Basket’ for the trademark infringement it’s better to consider the whole brand name.
The big companies must not harass or bully small enterprises by creating a monopoly or dominance over a single word of the trademark name. Big Basket bullies or misuse its superiority infringement of trademark by Daily Basket which includes termination of all operations and Big Basket also said that they dishonestly adopt their mark to hamper their sales.
According to Section 142 (1) of Trademark Act,
“Where a person, by means of circulars, advertisements or otherwise, threatens a person with an action or proceeding for infringement of a trade mark which is registered, or alleged by the first-mentioned person to be registered, or with some other like proceeding, a person aggrieved may, whether the person making the threats is or is not the registered proprietor or the registered user of the trade mark, bring a suit against the first-mentioned person and may obtain a declaration to the effect that the threats are unjustifiable, and an injunction against the continuance of the threats and may recover such damages (if any) as he has sustained, unless the first-mentioned person satisfies the court that the trade mark is registered and that the acts in respect of which the proceedings were threatened, constitute, or, if done, would constitute, an infringement of the trade mark.”
After this Daily Basket uses social media as a weapon for telling world about the bullying by the Big Basket. They made a website naming ‘bbisabully.com’. Big Basket issue an explanation for clarity that, they had just raised an objection where they feel that it was an infringement of trademark. They wanted to resolve this matter with Daily Basket in a very harmonious way. Now TATA Group has owned 68%of shares costing Rs. 9500 crore of Big Basket.
MAKEMYTRIP V/S MAKEMYTRAVEL
On 17 May 2018, the Company naming MakeMyTrip, which is a well-known brand in India, and also it has been used in other countries like the USA, UK, European countries, etc. They have a very big brand image in India, many celebrities promote their brand. They issue a legal notice to a company naming MakeMytravel regarding the trademark infringement. They also stated in that notice that the Company has to stop all the operations which are having their Trademark name. The MakeMyTrip states that the infringement has been done on the following things:
- The MakeMyTravel used the first two words of the MakeMyTrip i.e. ‘MakeMy’ and also they used the combination of words as same as the MakeMyTrip i.e. ‘MMT’.
- The nature of business is same as like the MakeMyTrip, both the company deals with traveling or tourism services. But the MakeMyTrip has protection from Trademark registration of their services.
- The tagline of MakeMyTrip is also protected under Trademark law, the tagline of MakeMyTrip is ‘Memories Unlimited’ which is similarly used by the MakeMyTravel as ‘Dreams Unlimited’ these both are identically similar.
They registered their name ‘MakeMytrip’, their website domain, their tagline ‘Memories Unlimited. As a result, any illegal use of the MakeMyTrip Marks and/or any other deceptively identical mark will be a violation of the Plaintiff’s statutory and common law rights.
The true test is whether the proposed trademark as a whole is likely to cause deception, misunderstanding, or error in the eyes of people who are concerned with the current mark.”
In the present case, MakeMyTravel uses the trademarks of MakeMyTrip in a dishonest intention. Also using the Plea of Acquiescence by the MakeMyTravel was not justified which the Court gives decision in the favor of MakeMyTrip.
The MakeMyTrip has a clear prima facie argument, according to the court, and the balance of ease is also in its favor. If the MakeMyTravel is allowed to proceed using infringing labels, the MakeMyTrip is likely to experience severe grave and serious harm.
Trademark infringement occurs when a registered trademark’s special rights are violated without the trademark owner’s permission. Any success gain by any brand takes a lot of patience, hard work, and a great mind. So for this such hard work must get protected so that nobody copy or use their name for gaining success. In the present case, the MakeMytrip gets protection under Trademark law that’s why they get remedy from the Court for the Infringement done by MakeMyTravel.