Shielding Reputed Marks: Paradoxes and Practical Solutions

Expedited globalization has necessitated enhanced protection of intellectual property, especially well-known trademarks. The paper traces the development of the concept of a well-known mark through a sound reading and understanding of the Paris Convention , the TRIPS Agreement , and the WIPO Joint recommendations . The paper then recognizes the role of Indian courts to secure the concept of a well-known mark through judicial activism. The paper then discusses the poor legislative drafting under the Indian trademark law, which fails to reflect the intention of international convention. It then looks into the vulnerability of infringement of such a mark by cybersquatting and delves into the legal lacunae present under the Code of Civil Procedure, which fails to remedy the proprietor of such a mark when the cybersquatter cannot be reasonably found. The paper suggests amendments to the existing law to resolve the aforesaid legal lacunae. The paper then delves into the legal complications arising when generic olfactory marks are granted well-known status in countries recognizing such non-conventional marks. The paper finally concludes by suggesting relevant remedies to such countries to counter the said issue.