Recently, Mast-Jägermeister SE, manufacturers of alcohol, filed a Writ Petition before the High Court of Madras against the Tamil Nadu Police. The matter relates to the usage of the company’s registered trademark- Jägermeister in a ‘don’t drink and drive’ campaign poster by the Tamil Nadu Police (see images). As shown, the bottles of Jägermeister (with their labels) are placed next to a picture depicting a fatal accident. Jägermeister requested the TN Police to remove the signage, however, no action was taken. Hence a writ petition was filed. Before the Court, the Tamil Nadu Police agreed to remove the signage. The court disposed of Mast-Jägermeister SE’s Writ Petition directing the Tamil Nadu Police to comply with the undertaking forthwith.
In 2012, Anheuser-Busch InBev, the brewery behind Budweiser, asked Paramount Pictures to obscure all images of Budweiser beer in the film “Flight”. Alcohol plays a prominent role in the movie and has a number of scenes showing Denzel Washington (a pilot struggling with alcoholism) consuming alcohol, including Budweiser. As reported, Anheuser claimed that they would never condone the misuse of their product and had always promoted responsible drinking. They were disappointed in the manner in which their brand was being used. Filmmakers and legal experts said that such use was protected under “fair use” privileges of trademark law.
These cases set the ground for examining what would constitute “fair use” of a trademark. As is known, the primary function of a trademark is to enable consumers to identify and distinguish between different goods/services in the market. Trademarks also help protect the reputation of a product from other products/services. In these cases, however, trademarks have not been used for the ordinary purpose of ‘marking’ goods/services. Signage related to public safety put up by the Police hardly qualifies as ‘goods/services’. Also, such use in a movie or a campaign can’t confuse or deceive a consumer. Even though such use may be contended to be detrimental to the repute of the trademark (if it is well known), a claim of dilution may not apply, at least for the campaign, since S. 29(4) requires the mark to be used in ‘course of trade’.
Fair use of a trademark requires the trademark to be used in a descriptive sense (here, describing the implications of drinking and driving. Or describing the characteristics/habits of an actor in a movie) rather than it being used a ‘trademark’. Could such use qualify as ‘fair use’?
