Can’t we stop trademarks and names that mislead unsuspecting consumers?
A positive effect of the draconian and, probably, ill-conceived action against Maggi noodles may be enhanced consumer awareness about harmful additives, colours and carcinogens that go into the snacks and ready-to-eat food we consume. The courts will decide whether FSSAI’s (Food Safety and Standards Authority of India) nationwide ban leading to a Rs320-crore loss was justified, or whether it sets a dangerous precedent for reckless and heavy-handed government action. But that the government did act in this manner should encourage us to ask whether government regulators and agencies are doing enough to protect us from being misled by a swathe of brands, celebrity endorsements and trademarks.
Let’s take a look at how compromised, or lackadaisical regulators have permitted the rampant misuse of brand names and trademarks and allowed them to successfully evade the Advertising Standards Code of India (ASCI) as well.
“Emami Biotech Ltd proudly presents its new range of Healthy & Tasty cooking oil, a healthier and tastier alternative to regular cooking oil,” says a claim on its website. The company has combined two generic words ‘Healthy’ and ‘Tasty’ into a brand name to create an impression in the consumer’s mind about possible product attributes which may or may not be present.
Another example is Dabur’s Fem Turmeric Herbal Bleach. While the bleach contains chemical bleaching agents, the company registered ‘Turmeric Herbal’ as part of its brand name. Isn’t this misleading? How do brand names like these get approved? Emami and Dabur are large companies, conscious of their reputation and products, but what happens when barely-known companies, selling products online, adopt similar strategies to mislead consumers?
A little digging reveals a whole body of litigation on trademark protection, which only indicates that those responsible for granting trademarks are fully conscious of their abuse and are doing precious little to protect consumer interest.
A Gurgaon-based company, Dharmani’s International, sells a whole range of health products with names such as such as Fit‘O’Fat capsules for increasing weight, Diabetes Medicine and Mega Slim Capsules. These used to be sold online through snapdeal.com, tradeindia.com and eBay.in, until recently.
Snapdeal appears to have pulled out the advertisements after the Maharashtra Food and Drug Administration (FDA) filed an FIR against its top executives. Products with names like Bye Bye Piles, Mega Fat Burner and Slim n Fit or Busty Best (by Zenvista Meditech) are also marketed online, with few details about product composition. These are just a few examples. There is a sea of similar products being sold across the country, usually hawking remedies for sexual dysfunction, fertility, hair-loss, weight-loss, skin disease or piles without attracting the scrutiny of the Drug & Magic Remedies (Objectionable Advertisements) Act, 1954 (DMR). Many are passed off as Ayurvedic ‘proprietary medicines’ and known to contain dangerous metals or steroids.
Things are equally bad in the over-the-counter cosmetics and skincare segments. A careless FDA that allowed ‘Fair & Lovely’ to be a brand a few decades ago, opened the doors to ‘Fair & Handsome’ for men and a slew of brands that are sold entirely by online or chain-marketing companies. One case stands out.
U-B Fair and No Scars are two products of Torque Pharma whose names seem explanatory but are inaccurate. Both contain corticosteroids. U-B Fair has Fluocinolone Acetonide in addition to hydroquinone and tretinoin. No Scars contains mometasone.
The product pack contains warnings such as—‘do not go out into the sun after using the cream’—and side-effects that include “possible thinning of the skin, redness, irritation, burning or mild skin rash may occur when this medication is first applied to the skin.” Clearly, they are medicines that require a doctor’s prescription. But U-B Fair had a big splashy launch with Bollywood stars Pulkit Samrat and veteran actor Om Puri extolling its virtues. Doctors say that using U-B Fair like a cosmetic cream could actually be harmful; the hyped-up marketing violates rules of the Drugs and Cosmetics Act of 1940 and Drugs & Magic Remedies Act.
The company has reportedly claimed that the product is not sold over-the-counter but its launch video on YouTube clearly has its brand ambassador Pulkit Samrat making exactly this claim. Trademarks, especially generic ones, have a fascinating history. Pitched legal battles are fought over what words or phrases can justifiably be registered as trademarks, or whether anyone can claim exclusivity over a combination of generic words (Sugar Free for sugar substitutes). Then, there are brands that become so popular that they turn generic (Kleenex, Xerox, Aspirin, Escalator, Linoleum and Cellophane). But the law is clear. Words that are part of ordinary usage cannot be registered as trademarks. Does this not mean that our regulators are sleeping on the job and do not even have a system to monitor and act against companies that deliberately mislead consumers?