In a response to MediaNama, Flipkart says that the website AmazonVsFlipkart.com did infringe its trademark, and even though it agrees that its legal notice to Amit Bhawani,the Editor in Chief of PhoneRadar.com, AndroidAdvices.com and GizmoReport.com, was worded “stronger than intended”. Flipkart believes that the legal notice was issued in the interest of safeguarding its goodwill, brand and trademarks.
The company had sent a legal notice to technology journalist Amit Bhawani, saying that his site www.amazonvsflipkart.com, which was used to poll users about their views on quality of service of Amazon and Flipkart, had violated their trademark and was a case of cybersquatting. Flipkart’s statement, following MediaNama’s story on the issue:
“We respect the right to freedom of speech and endeavor to carry out research and polls. However, the legal notice was issued in the interest of safeguarding our goodwill, brand and trademarks. We contend that the language employed in the said notice was stronger than intended, and will make necessary corrections for any future communication. Pursuant to our notice, the offending trademark infringement has been taken down. In view of the above, our communication has now become irrelevant.”
Issues remain with Flipkart’s stand
1. The legal notice remains relevant whether Bhawani takes the site down or not: it is the threat that prevents someone from running a poll because he’s afraid that a multi-billion dollar corporation will take him to court.
2. Flipkart can’t respect the right to freedom of speech “and endeavor to carry out research and polls”, and at the same time refer to the poll website as an “offending trademark infringement”. In my opinion, that is disingenuous.
3. Flipkart hasn’t addressed any of the questions we mailed them, about what kind of a confusion this site might cause among consumers, any indication of commercial gain from running this poll, the relevance of commercial gain, or for that matter, the basis on which it was accusing Bhawani of cybersquatting.
The questions we had mailed Flipkart:
1. On page 4 of your legal notice to Amit Bhawani, you mention that “an enormous likelihood of confusion amongst the relevant section of public connected” to Flipkart’s trademark is anticipated.
Q1. In the screenshot you’ve attached, both Flipkart and Amazon’s trademarks are showcased. Given that trademarks of both companies are showcased, what kind of confusion do you anticipate among the public?
2. In point 10 on page 4 and 5 of your legal notice, you’ve mentioned that “no third party can reproduce, communicate and publish without due permission or authority of our Client. In fact, it is pertinent to state that you have blatantly copied our Client’s artistic work and made illegal use of the same for commercial gains.”
Q2: Please explain how conducting a public poll does not constitute journalist research, and hence isn’t the usage of the trademark covered under ‘fair usage’?
Please note that even if it were for parody, the usage of trademarks is allowed. Incidentally, in case of Tata Sons vs Greenpeace International, Saikrishna Rajgopal, of Saikrishna & Associates (the firm which sent the legal notice on your behalf to Amit Bhawani), argued and won on the usage of trademarks for parody: http://indiankanoon.org/doc/562656/
To quote from that judgment: “the use of a trademark, as the object of a critical comment, or even attack, does not necessarily result in infringement.”
Q3. Please indicate how Flipkart is aware that Amit Bhawani used the trademark for commercial gains, as you have alleged in the legal notice. Also, please share any details, if available, of commercial gains from running this poll.
Also, to quote from the Tata Sons vs Greenpeace case, “The mere fact that the expressive activity has a commercial element should not be determinative itself.”
The Tata Sons vs Greenpeace judgment also cites a US Supreme Court judgment, which reference to copyright: “If, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in the preamble … including news reporting, comment, criticism, teaching, scholarship, and research, since these activities ‘are generally conducted for profit in this country’”
3. In point 11 you mention that there is great likelihood that actual or potential customers of Flipkart may be induced into believing that “services offered by you command the same level of reliability that is synonymous with the services of” Flipkart.
Q5. What services exactly were on offer on amazonvsflipkart.com, which merely hosted a poll daddy poll?
Q6. The legal notice also indicates that there is cybersquatting, with the usage of the domain nameamazonvsflipkart.com. Please explain how exactly flipkart believe that running a poll on amazonvsflipkart.com amounts to cybersquatting?
In addition, we’ve sent Flipkart two more questions, given the statement they issued to us:
Q7. This suggests that you still believe that there was trademark infringement. Please indicate how running a poll which uses the Flipkart logo is a trademark infringement, in the context of the Tata Sons vs Greenpeace International case referred to earlier, which allowed the usage of trademarks even for purposes of criticism and parody.
Q8. Please explain how your legal notice has become irrelevant, given that the site was taken down because of the legal notice?
Q9. Please indicate whether you would take legal action against Mr Bhawani if the website were to come back up.
We’ll update with answers in case Flipkart responds.