It is that time of the year when Planet Earth begins presenting an increasingly northern visage of itself to the sun. The occasion is celebrated under various names in different parts of India. In Tamil Nadu, it is the festival of ‘Pongal’. No festival in India is complete without the partaking of one or a variety of special food items, the festival of ‘Pongal’ is no exception. The Hindu, in its Chennai city supplement, ran a special feature on ‘Venn Pongal’ (a mildly spicy, thick porridge made of rice and processed green gram that is specifically consumed on the first of the three-day long festival) to mark the occasion. It spoke of six top destinations in Chennai, where one could partake of a plate of this delicacy that is hard to rival.
Of one of the places (Rayars Mess) that it listed, the paper also cautioned the reader may have an extended wait as the place could host only 16 diners at a time. This set me thinking: Why don’t the owners of ‘Rayars Mess’ open outlets and expand their footprint across different parts of the country and, dare one say, other countries as well? For that matter, why hasn’t someone come up with copycat version of the ‘Rayars Mess’ while not quite infringing on the latter’s trademark?
Staying single
For long, the phenomenon was confined to the McDonalds and the Kentucky Fried Chickens of the world. True, in more recent times a few small retail businesses in India have to taken to the concept of a ‘chain’ of establishments in a limited way. Some have ventured out to different parts of the city. A few others have moved into other regions but stayed within the country. A ‘Hotel Saravana Bhavan’ has taken the concept to the next logical level, setting up outlets in other parts of the world. There may be others but their numbers are so small that they are more the exception than the rule. Your typical retail merchant establishment is a single outlet affair. That doesn’t prevent it from being extremely good at what it does. But therein lies the risk.
With success comes the prospect of ‘copycat’ versions. The best that successful retail businesses could come up with when faced with copycats is to proclaim, ‘We have no branches anywhere’. The copycats tread a fine line between an outright ‘infringement’ and a clever attempt at making the public believe that the competitor and the original owner are one and the same.
Imagine that I am operating a successful retail vending business in stainless steel vessels under the name and style of ‘Sampathkumar Stores. If my neighbour thinks the store has acquired some brand equity in the neighbourhood and beyond and is therefore interested in venturing into the same business himself, he could well start one called ‘Sri Sampathkumar Stores’. The addition of the word ‘Sri’ could make all the difference between a complaint of ‘passing off’, in the jargon of trademark law, stick and an ability to successfully ride piggy-back on somebody else’s effort at brand-building.
The problem of copycats passing off as the original gets even more complex as one could come up with other variants of the same theme with a close resemblance in names. The adoption of a number of English words into the spoken vocabulary of any Indian language is particularly interesting as it affords the competitor a chance to further enhance the likelihood of successfully passing off as the original. ‘Murugan Idly Kadai’, a popular eatery in Tamil Nadu, may well be confronted with a hypothetical competitor starting a restaurant business under the name and style of, ‘Murugan Idly Shop’. Is the general public liable to confuse the two as one and the same? It’s quite possible.
Infringement of law
But if that is not enough, the penchant for some of the State Governments to demonstrate their love for the local language by enacting laws to compel merchant establishments to have name-boards and signage written in the local language makes the prospect even more likely. How does one depict the name ‘Murugan Idly Shop’ in Tamil? The law has never spelt out that whether it should be a transliteration of the English words in the vernacular language or a proper translation of the name so that there is not even a whiff of the ‘English’ language which seems to offend our leaders’ sensibilities so much. A clever competitor then, might be tempted to design the name-board as a proper translation and come up with the name ‘Murugan Idly Kadai’ and dare the original owner of the business to file a complaint of ‘infringement’ of trademark law!
Of course, you can’t fool the cognoscenti among the ‘idly’-consuming public in Tamil Nadu, who might be able to spot the difference in taste, texture, fluffiness and the ‘whiteness’ (often compared to jasmine, the acme of whiteness) between the two. The original owners of ‘Murugan Idly Kadai’ might never actually suffer a loss of custom nor damage to their reputation for dishing out soft ‘idlies’ of a jasmine hue. (As an aside, I am of the view that the abilities of the cognoscenti are a bit overrated. They could just as easily judge the fluffiness of a cream bun to be on par with that of a block of cement concrete.)
In any case, whatever be their abilities in judging quality, the harsh reality is that business volume is never influenced by the sophisticated and discerning consumer. What really matters in driving footfalls is the perception among the general public about where you can get a satisfying plate of idlies. That said, not every small retail business has the financial muscle to mount a legal challenge. There is no guarantee that the judge might see a trademark dispute in the same light as a complainant. For instance, is the brand of underwear with the name ‘Don’ an attempt at ‘passing off’ an already registered trademark of a competing manufacturer who sells under the brand name ‘Dawn’? This was an actual dispute that was decided by the Indian courts. In this case, the complaint of legal violation was upheld. But it could just as easily have gone the other way.
What’s the way out?
What is the way out? If the legal option is an ‘iffy’ proposition and costs prohibitively high, the best you could do is to shout from the rooftops, ‘we do not have any branches’. The idea is to subtly communicate to the average customer that there are actually two separate establishments with different owners and, more importantly, differing management processes. Left unsaid is the message that what the customer is seeing at that very moment is the real deal.
Mind you, the efficacy of such communication is open to challenge on two counts. One, it is a bit like ‘preaching to the choir’, when the customer is at the doorstep of the original trademark owner and the name-board proudly proclaims there are no branches anywhere. If, on the other hand, he comes across this claim in some advertising, there is nothing to prevent the customer from thinking the competitor with a similar sounding name is the ‘Real McCoy’.
An American professor who taught strategic management and was, for long, a columnist for BusinessLine as well, thought that this ‘no branches anywhere’ type of insular thinking had something to do with the Indian mindset that always prompts small businesses to hunker down in the face of a raging storm, hoping to somehow survive till the cyclone eventually subsides. In contrast, the American mindset is to confront a challenge head-on and see if, somehow, that challenge can be converted into an opportunity for greater profits. An American business may open a thousand stores so as to make the sole copycat version irrelevant, as the McDonalds and Kentucky Fried Chicken owners appear to have demonstrated in the fast-food business.
Small is beautiful
But it seems to me that the truth is a bit more nuanced than any cultural proclivities might suggest. The McDonalds and KFCs had access to risk capital on a scale impossible to replicate for the best of Indian businesses, not to speak of tiny entrepreneurs such as the owners of Rayars Mess. Also, these outlets were riding piggy back on ‘Brand America’ (in their overseas forays) which epitomised (until recently, at least) all that is best in the world. They could hope to convert a nation of noodles and dimsum eaters into believing that eating deep fried pieces of meat stuck between a bulbous pair of baked refined wheat flour buns and laced with cheese and lettuce leaves, is what a meal ought to be.
It would be a while before India can establish itself on a similar footing, if at all. Also, we could be entirely mistaken in thinking that these American businesses are vending burgers or fried chicken. They are vending the experience, where the ambience, noise, crowd and glitz are the chief ingredients being consumed, while the burger or fried leg of a chicken is an incidental item on the customer’s plate.
Viewed thus, maybe Rayars Mess too is vending a special kind of experience with its small dining room and a 45-minute wait, a charm that would be irretrievably lost if it were to convert itself into a 1,000-strong retail chain with a global footprint!