Comparative Advertising and Product Disparagement vis-à-vis Trademark Law

409-414Comparative advertising by means of using another’s trademark is permissible, however while doing so the advertiser cannot disparage the goods or services of another. Any such act disparaging the goods or services of another shall not only be an act constituting infringement of the trademark, but shall also be an act constituting product disparagement. This paper analyses the trite law on comparative advertising and product disparagement, in relation to trademark law; in the light of Sections 29(8) and 30(1), of The Trademarks Act, 1999. Section 29(8) enunciates situations, where use of another’s mark in advertising can amount to infringement, if such use does not comply with the conditions laid down under the section. At the same time, Section 30(1) makes such use, an exception, if it is in accordance with the conditions provided under this section. The conditions given under these two legal provisions are identical. The intent of the legislature in enacting the aforementioned provisions is quite apparent: To impose the leniencies of permitted comparative advertising over the stringencies of trademark protection

Doctrine of Equivalents: Scope & Limitations

314-329The scope of a patent is not limited to its literal terms, but instead embraces all equivalents to claims described in a patent application. Limiting the scope of a patent to its literal elements, would allow a competitor to make an unimportant or insubstantial change to the patented invention and thereby defeat the patent. The doctrine of equivalents is an important tool of law (developed by the courts of United States) to determine infringement in cases of non-literal infringement. The doctrine removes unfairness that could result from an overemphasis on the literal language of patent claims, and thereby affords protection accorded to the patent. The doctrine strikes a balance between a fair scope for the patent and the notice the patent provides for the public, along with a balance between incentives to innovate and costs of uncertainty. This paper analyses the scope of the doctrine in the light of the different tests and legal bars, developed by courts. The paper also comments upon the problems associated with the doctrine and the significant changes brought about to it, by the landmark judgment of the Supreme Court of United States in Festo Corp v Shokestsu Kinzoku Kogyo Kabushiki Co