First time in India the concept of Image Trademark has been used by the Trademark of Indian Hotels Company Limited (IHCL). They obtained Trademarks for Taj Mahal palace Hotel and Tower Wing Exterior (Image) on 19th June, 2016. IHCL was able to secure a trademark for the hotel’s unique architectural design consisting of a red tiled Florentine Gothic dome and the grand exterior.
Image mark itself suggests Trade dress protection. Trade dress is defined as “almost anything at all that is capable of carrying meaning”. The purpose of Trademark and Trade dress is to protect consumers from likelihood of confusion between the products.
Requisites for trademark Protection
- The building should be either owned by an individual or a company.
- It should be distinctive in nature.
- It should represent the brand that associates a product or a services to a source.
Aspects of Trademark Violation
- The use of the trademarked building should be non-editorial in nature. The image of the building should not be used to advertise other products.
- The use of the trademarked building by the third party in order to endorse identically similar goods or services.
Trademark Vs Trade dress: An India Perspective
The Trademark provides legal protection for a logo, symbol, phrase, word, name or design used to show the manufacturer of a product. However, Trade dress protection is broader in scope. It protects packaging and product design which creates overall brand value of the product. The Indian law on Trademark provides for passing off action against use of similar trade dress. For infringement of trade dress, a passing off action can be claimed. Therefore, the Taj Mahal Palace hotel, by applying for trademark demonstrates that the look of the building is itself unique in nature and needs to be protected as reproduction of the architectural design is recognizable and anyone by attempting to replicate or use it for any commercial purpose intends to cash in on its brand.
Trademark Protection of Architectural Design and its economic benefits
The debate over Trademark protection of architectural design initiated with the case of Empire State Building Vs NYC Beer. the building was owned by a private firm, registered its trademark in 1931. In the year 2016, an opposition was filed by NYC Beer. but the opposition was removed as Empire State building trademark was well reputed and recognized one, and its trademark protection helped to prevent the misuse or commercial unjust enrichment by other companies.
The grant of image Trademark to Taj Palace hotel confers exclusive right to exercise the rights of ownership. This gives the degree of immunity from rivalry in the market. It may facilitate conduct by the IP owner that would be deemed anti competitive, tending to suppress competition, raise prices, and reduce output and quality. Hence, this violates the all objective of intellectual property law which is to create innovation and on the other hand creates an unsettled leeway in the market. Therefore, there is a need for a balanced approach to ensure that intellectual property rights are not exercised in a manner that hampers innovation, restricts competition in the market and depreciates consumer welfare.