Regulations
Name Games
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? 

User

COMMENTS

M S Prabhakar

1 year ago

Here's the MOTHER OF ALL DECEPTIONS I just discovered.

AVEENO®, a part of the Johnson & Johnson Family of Consumer Companies, globally markets (including India) a range of 114 cosmetic products under an umbrella trade mark of ACTIVE NATURALS®. The categories are Body Care (41 products), Facial Care (30 products), Sun Protection (10 products), Hair Care (13 products), Baby Skin Care (17 products) and Men's Skin Care (3 products). In India, these products are sold through the back door by several traders by names of "Aveeno", "BooyahChicago", "Baby Bucket", "KIDS CITY", "Angooor Healthcare", "My Beauty Bazar", among others, on Amazon.in. at prices typically ranging from ₹ 1,000 to ₹ 5,000 for typical sizes ranging from 12 Fl. Oz. (354 mL) to 18 fl.oz. (532 mL).

According to their website, "AVEENO® ACTIVE NATURALS® ingredients are carefully selected from nature and uniquely formulated by AVEENO® through the power of science to deliver visible benefits for skin and hair".

So, what are these "ACTIVE NATURALS®"? The website clarifies them as following:

ACTIVE NATURALS®
Oat [Colloidal Oatmeal, Triple Oat Complex, and Oat Complex] (53 products)
Soy [Total Soy Complex] (15 products)
Wheat [Wheat Complex] (9 products)
Feverfew (3 products)
Shiitake [Natural Shiitake Complex] (6 products)
Southernwood (3 products)
Lotus [Lotus Complex] (1 product)
Seaweed [Seaweed Extract] (4 products)

Within the umbrella of ACTIVE NATURALS®, there are further trademarks such as:

POSITIVELY NOURISHING®/ POSITIVELY NOURISHING™, POSITIVELY AGELESS®/ POSITIVELY AGELESS™, POSITIVELY SMOOTH®/ POSITIVELY SMOOTH™, AVEENO PROTECT + HYDRATE®/ PROTECT + HYDRATE™, HYDROSPORT®/ HYDROSPORT™, ULTRA-CALMING®/ ULTRA-CALMING™, POSITIVELY RADIANT®/ POSITIVELY RADIANT™, ULTRA-CALMING®/ ULTRA-CALMING™, POSITIVELY AGELESS®/ POSITIVELY AGELESS™, SMART ESSENTIALS®/ SMART ESSENTIALS™, BABY CONTINUOUS PROTECTION®/ BABY CONTINUOUS PROTECTION™, PURE RENEWAL®/ PURE RENEWAL™, BABY CALMING COMFORT®/ BABY CALMING COMFORT™, BABY CONTINUOUS PROTECTION®/ BABY CONTINUOUS PROTECTION™ and MEN'S™. The difference between the suffixes ® and ™ is that, while ® represents that it is a REGISTERED TRADE MARK (in the territory of approved sale), ™ denotes that the trade mark is NOT REGISTERED in the territory of approved sale.

The fun doesn't stop here. If you see the back of these packs, it's written:

"Drug Facts:
Active Ingredient: Dimethicone x%;
Inactive Ingredient: avena sativa (oat)" [among others]

So, what's this "Dimethicone", which is the RECOGNIZED ACTIVE INGREDIENT (according to FDA)? Dimethicone (also called as Polydimethylsiloxane, and sometimes abbreviated as PDMS) is one of several types of silicone oil (polymerized siloxane), a SYNTHETIC POLYMER WHICH DOES NOT OCCUR IN NATURE. Its applications range from contact lenses and medical devices to elastomers; it is also present in shampoos (as dimethicone makes hair shiny and slippery), food (antifoaming agent), caulking, lubricants, kinetic sand , and heat-resistant tiles. [Source: Wikipedia].

So, an ORDINARY CONSUMER will purchase such PROHIBITIVELY EXPENSIVE PRODUCTS with a PERCEIVED promise of ACTIVE NATURALS®, while what s/he gets is a product with an ACTIVE SYNTHETIC POLYMER.

References:
1. http://www.aveeno.com (AVEENO®, a part of the Johnson & Johnson Family of Consumer Companies)
2. https://en.wikipedia.org/wiki/Polydimethylsiloxane (Wikipedia entry for Dimethicone/ Polydimethylsiloxane/ PDMS)
3. http://www.amazon.in (Amazon India - Search for AVEENO® products)

nilesh prabhu

1 year ago

It is not the job of trademark agents to stop misleading brand names.

However it is the duty of Ayurvedic departments of respective state to take preventive action.

Before a ayurvedic Product license is issued, lots of forms have to be filled. It is at that time itself that authorities must use commonsense and stop misleading names, License are issued by ayurvedic doctors then how can they agree to brands like grow tall.



MG Warrier

1 year ago

Moneylife and Sucheta Dalal deserve a special thanks for the thankless job of creating awareness about the 'games people play' just for misleading consumers and clientele with the primary idea of earning profit without the effort usually profit-making is all about. Misleading advertisements and brandnames get support from a section of the media also as media is dependent on advertisement for revenue. Even government-sponsored advertisements which are misleading or misrepresenting are accepted by 'big' newspapers and channels which claim to be 'investigative' professionally. Celebrated artists in film industry and sportspersons who have become popular also do not mind receiving some pocket money by being part of these games.

R S Murthy

1 year ago

Yesterday only we have seen Mr.Mundra talking about 5 kinds of finanacial literacy.

This article says we do not have product literacy also.

PATTABHI

1 year ago

The point is well-made..On as slightly different note, are the politicians' several election time promises not misleading ? Except a few like JJ or MK , most just call it election time "Jumla" ! How come ethics and values apply only to ordinary citizens - individual and corporate - but not to the political class?

M S Prabhakar

1 year ago

I entirely agree with your observations on how misleading these names are. But, if you dive deeper into the origin of this name game of deception (especially rampant in cosmetics industry), names like Fair & Lovely® (Unilever) and Clean & Clear® (Johnson & Johnson) spring to mind. So, where does FDA start?

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