(Image Source: https://flic.kr/p/8KDGTc)
Here at SpicyIP, we have repeatedly highlighted the many ways intellectual property law can and has been used, or perhaps ‘abused’, as a tool for supressing speech. The speech that is usually targeted is of a kind that the IP owner disapproves of, or doesn’t want heard, and which it then tries to suppress by claiming infringement. Very recently, it appears that Flipkart may have used this tactic to shut down an independent customer-review website!
The website in question was hosted on the URL AmazonVsFlipkart.com, and hosted a poll where users could rate their experiences on the two online-marketplace giants. The website was run by technology journalist and blogger Amit Bhawani, who received a legal notice from Flipkart’s lawyers alleging trademark infringement and cybersquatting, and asking him cease-and-desist. Medianama has a copy of the notice, and they state that the notice alleges the website would create confusion among the Flipkart’s users, that its users could be confused by the services offered by the website, that it counts unauthorised publication of the Flipkart logo, and that the reproduction was for commercial gains. As Medianama points out, and as I discuss below, these claims are rather quite absurd and don’t hold any water at all, which is perhaps why Flipkart’s lawyers later “contented“ that the statement was ‘stronger than intended’.
But by this time, the damage was already done – Bhawani has taken down the website, and once again, the overbroad and ambiguous usage of intellectual property law has made it a tool for supressing legitimate free speech.
Now, from the reported facts, the allegations of infringement against Bhawani’s website are centered on two issues: 1. the website’s use of the trademark is likely to cause confusion among the customers of Flipkart; and 2. the website’s provisions of services, allegedly for commercial gain.
Creation of confusion “on the part of the public” is covered under Section 29(2) of the Trademarks Act, which requires some ‘identity’ or ‘similarity’ between the mark itself and the goods and services offered under the infringed trademark. In the case at hand, the ‘service’ offered by the website, if it can be called that, was that of a simple review portal, while the services offered by Flipkart are those of an ‘online marketplace’. While this analysis is dependent on the classes the Flipkart trademark is registered under, the differing services offered, and the nature of Bhawani’s website make any confusion on the part of the public quite unlikely.
The service provision and commercial gain point is admittedly more dicey, as we are unclear on what Bhawani intended to do with the information collected from the website. His tweets indicate that it was ‘just fun!’, but if he monetised the information collected from the website at a later point of time, it could arguably count as using the information for ‘commercial gains’. But, crucially, at the time when the notice was sent, Bhawani was not incurring any gains from it. In fact, the purpose of the website is arguably simply to collect consumer reviews, for journalistic or recreational purposes.
As the Delhi High Court held in Tata Sons v. Greenpeace, “…the use of a trademark, as the object of a critical comment, or even attack, does not necessarily result in infringement.”. Though this particular case came in the context of parodies, it’s arguably quite clear that information such as reviews or critical commentary doesn’t necessarily result in infringement.
Thus, even though Flipkart’s claim was based on very, very shaky – and perhaps nearly non-existent – legal grounds, a website engaged in useful consumer speech was shut down because of a legal notice sent by a huge corporate to an individual blogger. If that is not one of the best and clearest example of ‘chilling effects’, I don’t know what is.