After Kellogg’s and Bata, it is now the turn of Cadbury to lose a trademark for non-use, ‘eclairs’ in this case, leaving experts intrigued as to why the chocolate maker couldn’t come up with enough evidence of its use when asked in a court. The Intellectual Property Appellate Board (IPAB), India’s patent appeals board, recently ordered the removal of three trademarks of Cadbury Eclairs, following a case initiated by rival ITC. The dispute itself is a decade old. It started when ITC started marketing eclairs confectionery along with its ‘Candyman’ trademark, something that Cadbury got an injunction against. Eventually, ITC moved IPAB, making a case that the trademark hasn’t been used since 1994.
Cadbury, in defence, said the Cadbury’s Chocolate Eclairs was registered as a trademark in India as early as 1974, and that it has been continuously used since. They also have trademarks for Cadbury Chocolate Eclairs and Chocolate Eclairs Pop. But the IPAB judgement, delivered by V Ravi and S Usha, said there isn’t “a single evidence” to prove it. “Just the registration alone will not help the respondents to prove their use,” the judgement went. Further, it said, “The board in various matters on the issue of non-user has held that if the respondent does not appear to rebut the ground of non-user, it goes without saying that they have not used the mark even after several years of registration and the mark shall be cancelled for non-user.
” T Prashant Reddy, an intellectual property lawyer, said, “It is not clear as to why Cadbury failed to file such evidence, especially since it had been maintaining some of these trademarks for more than 40 years.” A spokesperson for Cadbury downplayed the development. She said, “The label mark for Cadbury Eclairs, which formed the subject matter of the litigation, has not been used by Cadbury for many years and hence we do not plan to take this matter further. We continue to retain other trademark rights in the Cadbury Dairy Milk Eclairs brand, and the IPAB’s decision, if any, has no bearing on those trademark rights.
” Reddy said it would be “interesting” to see the implications of this on royalty payment from the Indian subsidiary to the UK parent for the right to use these trademarks, given that “several MNCs like HUL have been increasing the royalties payable by their Indian subsidiaries for the use of the parent company’s intellectual property.” What this episode highlights is that non-use is becoming a major reason, of late, for brands losing trademarks. Kellogg’s got its trademark POPS removed last year in a case against Chennai-based Pops Food Products, which makes chewing gums and dairy products. Bata lost its Sparx trademark in a case against Relaxo Footwears early this year.