Principle or Provision: Honesty as a Defense Against Trademark Infringements?

Perhaps our readers are already aware of Section 12 of the Trademark Act of 1999, which allows multiple owners of identical or similar trademarks to register them if they are used concurrently in good faith under certain unique conditions. Honest contemporaneous usage ("HCU") is not a defence to a trademark infringement action, according to a clause that made headlines a few months ago. It originated from a decision made by the Delhi High Court (DHC) in the case Kei Industries v. Raman Kwatra (KEI-1), which relied on the Supreme Court's ruling in Power Control v. Sumeet Machines to reach that result.

However, Sumeet Machines featured an honest concurrent claim in a copyright infringement suit rather than a trademark infringement allegation, which the Court dismissed, as the DHC also pointed out.

Therefore, the issue of whether Honest Concurrent Use can serve as a defence against accusations of trademark infringement remains. Here and here, Eashan Ghosh offers some compelling cases in favour of HCU as a guiding concept. In this article, I expand on it by highlighting HCU's heritage and making the case that HCU is a trademark law principle, not just a clause contained in Section 12. When interpreted as such, its applicability is not restricted to a single registration-related regulation. Instead, it might be used as a proactive defence against a claim of infringement.

In conclusion, viewing HCU as a clause rather than a guiding concept might obscure the larger notion of honesty or fairness in trademark law, which goes hand in hand with owner rights and the public good. The two articles that come after, both of which were written more than ten years ago, also assert that HCU has contracted. After that, though, a lot has changed.

The empirical research will be fascinating because it will reveal the hidden historical assumptions that subtly influence our legal thinking regarding trademark law.

Locking up the cooperative agreement is terrible news for initiatives in public health. The general public, scientists, academics, and other industry participants—all of whom can help make this technology work effectively—are unaware of the intellectual property rights that surround it.

Collaboration contracts typically include important information regarding the invention, scientific and manufacturing procedures, ownership of the intellectual property rights, research programmes, collaborator rights, resource allocation, etc.

Separately, presuming that these are genuinely trade secrets, the government should create open procedures to promote technological transfer rather than locking them up. The government can accomplish this by promoting technological cooperation and providing knowledge to private enterprises or academic institutions.

These initiatives will draw investors into India, boost industry adoption, and stimulate innovation around this new technology given that the mRNA platform is attracting interest from all corners of the globe.

Transparent and appropriate licencing agreements that can broaden access to this technology can help researchers and business partners forge productive connections. Instead of standing its ground, the government should make the collaboration agreement public and work to widen access to technologies that have the potential to significantly improve public health.

This suggests that startups will have simple access to venture capitalist funding, and it suggests that academic institutions will find it simple to transfer technology.