As the trademark is a registered mark (word, text logo etc.) which does not implicit the source of goods and services but also assures the quality, quantity, nature, good will etc. of the product and services. The protection of unauthorized use is essential because it not only infringes on the right of the owner but also in most cases giant evil consequences. Generally, the infringer unfairly used the trademark to create confusion amongst customer gimmickry which in most of the cases, upshot in monetary loss or tarnish the reputation & good will of the owner of right (Senior user) or both. The trademark is also public rights because when rights of trademark get abused the rights of the public get lost by the deception of the mark. The expected quality and quantity of products and services of the public may be hampered due to infringement. The trademark possesses a message that the owner is controlling the nature and quality of the sold products or services. So, if the owner will not prevent the misuse of the trademark in the hands of others, then the public will be deprived from his most effective protection against the misleading by the unauthorized and misuse of the trademark. As per the latest report of the United States Patent and Trade Mark Office ("USPTO") to the congress, the term Trademark Bullying in another word Trademark trolling is a vexatious act of the owner of trademark or use of trademark rights in such a way that it will harass or intimidate the business of the other. These acts are beyond the scope of the protection of rights reasonably in the law. The law protects the trademark rights and intends to grant the exclusive proprietary rights and monopoly to the safeguard of collective goodwill. It protects the sale of counterfeit or duplicate products for similar products/services in the personification of the brand of others. But when the owner of a trademark goes beyond the legal capacity for the protection of their mark, then it becomes "Trademark Bullying". Trademark Bullying is overstepping the line, capacity and monopoly, a vexatious work by threatening or trying to threaten for any legal action against anyone without any reasonable or legal grounds. The recent issue of the Big Basket and the Daily Basket is the quintessence to demonstrate the blurring line between Trademark protection and Trademark bullying. The largest grocery store, BigBasket threatened a young startup company, the Daily Basket, with a cease and desist legal notice consisting of allegations of infringement of trademark for mere use of the term "Basket".
The Cease and Desist legal notice sent to caution the wrongdoer and demand to cease that action to preclude further harm. In case of non compliance with the demand or caution of legal notice, the appropriate legal action can be taken. But in this case, the terms like basket, cart, pantry etc. are commonly used term by grocery companies. There is no scope or sense of confusion regarding any association with the BigBasket by mere use of this term Basket. And also, there is no use of any symbol or mark of BigBasket or any similar mark or symbol by the Daily Basket. No reasonable man with a prudent mind will be confused with the product or quality or good by merely seeing the term basket even remotely. As per the Section 142 of the Indian Trade Marks Act, 1999 which deals with the protection against the groundless threat for legal action for unjustified reason. Section 142 states that "when a person by means of circulars, advertisements or otherwise threatens another person with an action or proceeding for infringement of a trademark registered/ alleged to be registered, the person aggrieved may bring a suit against the former and obtain a declaration to the extent that such threats are unjustified." So, in case of unreasonable threaten for legal action for an unjustified reason, the aggrieved party may move for the suit to obtain a declaration to the extent that such threat is unjustified. But in this case, the aggrieved Daily Basket designed a new website called bbisabully.com and made the legal notice publicly and counter that claim of Bigbasket vigorously.
Leave it, I will not dive into that, but it is true that there is an attenuate border between Trademark Protection and Trademark Bullying. And which needed some more strict legal sanctions and interpretation with strict implementation to preclude this vexatious action, especially which is against new emerging startups.
Trademark Protection v/s Trademark Bullying
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