“What's in a name? That which we call a rose, by any other name would smell as sweet — would have been acceptable to Shakespeare, but certainly not to WIPO (World Intellectual Property Organisation). Today, everything is in a name, if the name had acquired significance as a trademark,” begins a judgement delivered recently by Justice V. Ramasubramanian of the Madras High Court.
A master of the art of writing judgements, the judge had made the observation while disposing of a case related to usage of certain terms in Internet search engine Google. Describing the way in which the search engine worked, he said: “The results displayed (by it for every term) are so voluminous that if one surfs through them in its entirety, one may retire from service, or perhaps even from this world.”
Dealing with advancements in information technology which could profile the surfing habits of browsers, predominantly for the purpose of advertising, the judge said: “As a matter of fact, whether one leaves footprints on the sands of time or not, a web surfer, without even realising what is happening behind him, leaves a trail behind whenever he visits a site.”
In his 137-page judgement, he also delved deeply into the Internet age ever since its beginning in 1969 with just four computers located at University of California and the origin of trademark disputes worldwide in the Internet context in order to understand “how the war on words or war for words (rather than war of words) in the virtual world is different from that in the real world.”
At one point of the judgement, the judge said that the Trademarks Act, 1999, speaks of honest practices in business at two places but does not indicate anywhere as to what constitute honest practices. “It may perhaps be due to the fact that persons who follow honest practices in everyday life do not need a definition from the statute book, while for others no amount of definition would be of any use,” he said.
Mr. Justice Ramasubramanian went on to state: “Honesty is actually an animus of mind. It can never be discovered either by words spoken by a person or by acts of omission and commission committed by him. Therefore one can only make inferences from the circumstances.”
