Protection of Well Known Trademarks and Weakening of Honest Concurrent User Defense

Abstract

This paper sheds light on the protection of well known trademarks in India <i>vis-à-vis</i> various parameters and evidence requirements, primarily by way of analysing relevant case laws. In order to assess how ‘IP-savvy’ Indian courts are, this paper also shows through empirical data that the trend in Indian courts in the last few decades has consistently been pro-plaintiff while deciding intellectual property cases. Further, the paper examines the ‘honest and concurrent user’ defense against the action of passing off pertaining to trademarks’ use by analysing the latest case laws. This shows a paradigm shift regarding honest user defense in the sense that it is gradually becoming weaker; the main reasons being ‘trademark-smartness’ of trademark proprietors, advanced information technology and ease of access to information, among others. The paper also pinpoints a few exceptional cases where the courts have been more lenient in allowing this defense; pertaining to education sector in particular, on the grounds of public interest.