Quality Control In Trademark-The Indian Perspective
It is human nature to take credit of his hard work, especially in today’s times where there is cut throat competition; Man wants to carve a niche for himself in any field he plunges into. Man wants to stand out in a crowd and leave a mark of his identity and distinctiveness. He wants to convey a message to this world to the effect that, the feat he has achieved is something which is not achievable by everyone. In the field of trade in particular, quality is of utmost importance because a specific mark whether of words or pictures or both applied by a trader, in connection with the goods supplied or services rendered by him earns him goodwill in the market. The trading company, through application of a trademark on its goods and services sends a message to its consumers and customers that they are getting goods or services of the quality for which the company is reputed.
Trademarks are thus “quality symbols”. It moulds the order of priority a consumer can have as regards purchasing things or availing of services. These marks are output of one’s intellect which he uses in producing the goods and applies to the trade in question. Hence, such form of intellectual property needs protection so that it lures more and more people to make an attempt to come out with quality goods and services for welfare of the society.
The literature referred for this research topic is taken from authoritative sources and is comprehensive, precise and contemporary. Various websites, books, law journals, case laws etc were referred. The researcher has adapted doctrinal method of research.
1.2 Review Findings:
The scope of this research paper is limited to the quality control in trademark. It deals with the following issues:
a) Quality control in trademark
A trademark serves to identify the origin of the product to which it is affixed and also to assure the purchaser that the product is of a certain quality.
b) Effect of Trademark on a consumer’s decision making capacity.
If the product is of standard quality the consumer will influence others to purchase and thereby demand for a particular product increases.
c) Is quality an essential feature in granting trademark in India?
No. Quality aspect of goods and services is looked after by other Acts.
2.0 Growth Of Trademark Law In Re To Quality:
In British system, trademarks were used by traders to denote quality of their goods. Its misuse was taken care of by common law under two heads: a) Passing off and b) Injurious falsehood. In the medieval period, there developed guilds of traders which required, that a trader should use marks or signs on goods to ensure that the goods were of “satisfactory quality‟, which, in turn, helped them identify the source of “unsatisfactory goods”.
In the words of Bently and Sherman “…With the growth of mass media and the reading public, traders started to advertise their goods by reference to these marks. In turn, purchasers of goods started to rely on the signs the goods bore as truthful indications of the source of the goods. Importantly they began to use them to assist their purchasing decisions. Overtime, as consumers started to realize that some marks indicated a particular manufacturer and, in turn, goods of a certain standard, the nature of the mark changed from being a source of liability to become an indicator of quality.”
In the twentieth century marks were recognized as intellectual property because they proved to be more valuable than most of the assets a trader could possess. It is important to note that during this period customers’ obsession for a particular product may have even made him less caring as to the quality. Hence, trademark serves more as a marketing tool and less as a means of identifying a product’s source or sponsorship or quality.
Trademark is an old concept. The World Intellectual Property Organization in its handbook on intellectual property law and its uses mentions this fact:
“As long as 3000 years ago, Indian craftsmen used to engrave their signatures on their artistic creations before sending them to Iran. Manufacturers from China sold goods bearing marks in the Mediterranean area over 2000 years ago and at one time about a thousand different Roman Pottery marks in use….”
Thus, primarily, Trademarks were used to indicate ownership. However, with the tremendous growth of trade and commerce, marks developed other meanings as well. A trademark besides denoting the origin of goods also now informs the consumer of the quality of goods supplied under it and, therefore, plays an important role in the decision making of the purchaser. Quality goods available to the customer under a particular trademark also work as a confidence building measure for the customer in that he becomes assured of the quality of the goods bearing that particular trademark which consequently becomes his obvious choice for that particular kind of goods with which the said trade mark is attached.
Bently and Sherman remark: “Over time, as consumers started to realize that some marks indicated a particular manufacturer, and in turn, goods of a certain standard, the nature of the mark changed from being a source of liability to become an indicator of quality.”
The Trade Marks Act, 1999 of India defines a trade mark as “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 shape of goods and their packaging and combination of colours.” Trademark “includes a certification mark or collective mark.” Besides these, In United States of America there are sound marks, smell marks etc.
A certification mark indicates the certificate quality of goods or services. Any individual who maintains the required quality in its good or services may use this mark. Therefore, maintenance of specific standards as to ingredients, quality etc is the key to use of a certification mark. The mark “Agmark” used for spices and food items is a certification mark certifying the quality of food items covered by the mark “Agmark”.
Trademark primarily is a sign which is capable of distinguishing goods or services produced or provided by one enterprise from those of another enterprise. Trademarks can be words, letters, numerals, labels, pictures, shapes, colours, etc. It is not about quality. The basic function being this, it is also an indicator of the source of origin of the goods or services. Due to the prevailing laws, consumer preference and availability and use of local raw materials, sometimes there are minor variations in the product being sold in one country using the same trademark as compared to that in another country, in another continent. There are other laws to deal with quality matters like Consumer Protection Act, 1986 and the Drugs and Cosmetics Act, 1940. These laws ensure that substandard quality goods and services are not sold to the consumers and provide necessary remedies. The provisions of the Consumer Protection Act, as we know, are compensatory as well as preventive and punitive in nature. The Act provides the right to be informed about the quality, quantity, potency, purity, standard and price. It also provides redressal against unfair trade practices. Neither the Paris Convention, 1979 for protection of industrial property nor the TRIPS Agreement, 1994 nor the Trademark Law Treaty, 1994 refers to this aspect. It is also important to note that Indian laws as such cannot mandate that the holder of an international registration of a trademark shall apply the same trade description as to the standard of quality of goods or services not only in India but also in all member countries and seek to impose criminal liabilities for that breach.
It is an identity mark of what is produced or manufactured by an enterprise or entity here and the standard of that product; trademark never deals with the quality of the product; it is only for identity. The same product could be manufactured by hundreds of manufacturers, whether it is soap or talcum powder, whether it is pickle or burgers. This is because the local raw material used also differs. Take for example, a trade mark of a pickle or Haldiram’s Bhujia. Now, in Bhopal, it may taste slightly different because of the local ingredients, and, in Delhi, it may taste different. So, even within the country, you cannot say that from Cochin to Kolkata, it will be of the same flavour. The oil that is used, the local material that is used, and, even water has their impacts.
3.0 Quality Of Goods:
If an enterprise maintains the quality of goods it produces it may, over a period of time, have effect on the consumer. Having used the same product more than once the consumer cannot help but be pleasantly surprised if he has found the same good standards of the product every time. In such a situation he is assured of the quality of the said goods under the said trade mark the next time he is in the market. In some extreme cases, he may also advise others, from his own experience, to use the goods bearing that particular trade mark because convinced as he is, such goods are supposed to be of good quality. In such scenario, the trademark turns out to be a quality mark for the consumer. This function of the Trade mark may be called “quality function.” It guarantees its quality. The quality of tea sold in the packs marked Brooke Bond Tea would be similar but different from tea labelled with mark Taj Mahal. The protection of the rights of owner of a trade mark will certainly make him more devoted to his job in trying to come out with better quality of products to win over his competitors in the market. In this sense the legal protection may result in encouraging the quality producers and discouraging those who may try to take customer’s choice for granted with their substandard goods. This may be termed as the quality factor of justification of a trade mark.
4.0 Inter- Relation Between Passing Off And Quality Control:
Passing off was used to denote the act of person to sell his goods as the goods of someone else i.e. selling one’s goods with a trade mark which was owned by somebody else. For example using a mark “Colmate” on a tooth paste with a similar get up to pass it off as “Colgate”. Likewise, when a person, during the course of trade, makes use of false information which is likely to injure the reputation of someone else to whom such information is related; it is known as injurious falsehood.
There can be no doubt that a trademark serves not only to identify the origin of the product to which it is affixed, but also to assure the purchaser that the product is of a certain quality.
Hence, to sum it up in Peter F. Druker’s words: “Quality in a product or service is not what the supplier puts in, it is what the customer gets out and is willing to pay for. A product is not quality because it is hard to make and costs a lot of money, as manufacturers typically believe. This is incompetence. Customers pay only for what is of use to them and gives them value. Nothing else constitutes quality.”
Therefore, today’s purchaser is more concerned with a trademark as indicative of a particular quality as opposed to a particular producer.
This article has been authored by Sachi Kheskani who is pursuing law at Gujarat National Law University