Brand owners should have mechanisms for monitoring IP infringing content
11 October 2022
Brand owners should have mechanisms for monitoring content that may infringe their intellectual property and then take swift action after discovering such content.
Rahul Bajaj, an attorney at Ira Law in New Delhi, made the statement in connection with the Delhi High Court’s recent order to Amazon India to take down the Pakistani-manufactured beverage named Rooh Afza from its product listing.
The order came after Hamdard National Foundation filed a plea before the court. A representative said that Hamdard Laboratories (India), founded in Old Delhi in 1906, owns the trademark to the beverage which the company began manufacturing in 1907. The packaging of the beverage products listed in Amazon did not contain details of their Pakistani manufacturers.
First marketed as a medicine in 1907, Rooh Afza is one of India’s most preferred drinks during the summer months. A mixture of mint, rose and other cooling agents, the time-honored beverage is also popular during Ramadan.
Then came the partition of India in 1947. In accordance with the Indian Independence Act 1947, British India was divided into two: India and Pakistan. The latter was composed of five provinces, one of which was to become an independent country in 1971, Bangladesh.
Following the partition, Hadeem Mohammed Said, one of two sons of herbal doctor and Hamdard Laboratories founder Hakeem Hafiz Abdul Majeed, moved to Pakistan where he established a second Hamdard firm. His older brother, Abdul Hameed, stayed behind in India and grew their father’s business after he died. A third Hamdard enterprise was established in Bangladesh many years later. All three Hamdard companies were manufacturing the famous Rooh Afza. As in India, the drink is also much loved in Pakistan and Bangladesh.
Amazon has reportedly taken off the products from its platform in compliance with the order.
According to Bajaj, the need to implement monitoring mechanisms is a key takeaway from the Rooh Afza trademark incident.
“The brand owner should reach out to the intermediary through mechanisms set up by the intermediary for this purpose or seek a court order so that such content can be taken down. That is what the plaintiffs did in this case, and that would be the most effective way for any plaintiffs to safeguard their IP rights on the internet,” said Bajaj.
However, he stressed that it is not possible for internet intermediaries like Amazon to keep track of all infringing material on their platform.
“Notwithstanding that a business branched out into two countries from historically common roots, trademark rights are territorial in nature and the respective owner in the respective country would be within its rights to enforce the trademark in that country,” Bajaj added.
- Espie Angelica A. de Leon