DC comics and Marvels, jointly owned the trademark word “superhero”, by joint trademark ownership, they are referring to two separate entities owning one single mark in same geographical region over same kind of product and services. In this article, it was expected to discuss the split between these two entities; instead we would discuss joint ownership which could be a positive Endeavour.
Purpose of jointly owning mark
Imagine an scenario where two and two entities have been jointly using a particular mark for selling of the products. Consequently, neither would be able to individually register the mark as order would be able to successfully oppose registration, given that both parties would have equally legitimate rights over the mark. Hence it makes sense of the two entities to jointly register the mark, instead of making it impossible for both parties to enjoy goodwill associated with the mark. Examples,
“Superhero” owned by DC and Marvel.
“Swiss Army” owned by Wenger and Victorinox.
Definition of “Trademark” and Single Source Argument
A Trademark means a mark capable of being represented geographically and which distinguishes our goods and service from those of others and may include shape of goods, their packaging and combination of colors.
The “single source” argument, apart from being merely technical in nature, also argues that having two entities behind one mark could lead to confusion among customers.
In case of marvels and DC owning “superhero”, it was difficult to ascertain the similarity on the narrow point of quality itself, which was used to justify single source in “Swiss Army” case. Note that the values allowed for joint ownership are equally valued.
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Dilution as a result of Joint Ownership
If two separate entities own a similar trademark, they both can individually license the mark to whomsoever they wish. By doing so, the mark could get diluted, finally ending in demolition of mark’s trademark status.
Indian Provision on Joint TM Ownership:
Trade Marks Act, 1999
(1) Save as provided in sub-section (2), nothing in this Act shall authorize the registration of two or more persons who use a trade mark independently, or propose so as to use it, as joint proprietors thereof.
(2) Where the relations between two or more persons interested in a trade mark are such that no one of them is entitled as between himself and the other or others of them to use it except
(a) On behalf of both or all of them; or
(b) In relation to an article or service with which both or all of them are connected in the course of trade,
Those persons may be registered as joint proprietors of the trade mark, and this Act shall have effect in relation to any rights to the use of the trade mark vested in those persons as if those rights had been vested in a single person.”
