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Advertising code also applies to brands, says ASCI . regulator

NEW DELHI : The Advertising Standards Council of India (ASCI) said Thursday that the code also applies to trademarks, in an effort to protect consumers from misleading claims by companies with descriptive or laudatory words and slogans in their trademarks.

Descriptive trademarks are often false and dishonest and must follow the ASCI ad code, it said in a report it unveiled with intellectual property firm K&S Partners.

ASCI is a non-profit self-regulatory body under the Companies Act.

Business entities often register descriptive words as trademarks, which can be false or misleading. But when the regulator objects to such claims, they cite their legal rights granted by registered trademarks, the report said.

The report, Misleading Ads and Trademarks: A registration conundrum, states that it is not uncommon for the Trade Marks Office to allow registration of such descriptive or laudatory marks.

For example, a descriptive brand like ‘All Wool’ in clothing indicates that the product consists of only wool.

Since the Trademark Office does not examine its accuracy, goods sold under the trademark ‘All Wool’ cannot in fact be made from wool alone.

When cases of such misleading claims are handled by ASCI’s Consumer Complaints Council (CCC), advertisers who have secured descriptive trademark registrations often rely on their registrations to claim that the trademark registration is prima facie proof of its validity. and that the ASCI code cannot restrict the use of registered trademarks.

“These defenses are devoid of any value and must therefore be rejected. Just as the registration of the name of a company that incorporates a trademark does not serve as a defense against a trademark infringement or claim of deception, so registering a trademark cannot serve as a defense against making false or unfair claims. ASCI said.

While the ASCI Code does not specifically prohibit the use of registered trademarks, there is an express prohibition against the use of statements or visual presentations that directly or indirectly make false or unfair claims.

“So the ASCI code would certainly apply to trademarks, which are typically unverified or false,” it said.

“The problem with false, unsubstantiated and unfair advertising, under the guise of descriptive or laudatory trademarks, is serious. Protecting consumers from deception is one of the key principles of the ASCI Code, the Trade Marks Act and the Consumer Protection Act,” said Prashant Gupta, partner of K&S Partners.

“The Trademark Office must raise the threshold for descriptive or laudatory trademarks, otherwise protecting consumers’ rights against fraudulent brands and making informed choices would be seriously compromised,” he said.

To solve the problem, the registrar (of trademarks) should show more restraint in allowing registration of descriptive trademarks. Judicious exercise of the Trade Marks Office’s discretion would largely reduce the number of false claims, the report said.

Manisha Kapoor, ASCI’s chief executive officer and secretary general, said: “At ASCI, we see cases where the advertiser uses a trademark registration to defend its direct or implied claims, claiming that a trademark registration means that the claim is good in the law.

This is not true, and we would ask brands to be careful about using untrue, exaggerated or misleading terms to describe their products, whether they are trademarks or not.”

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