Trade mark comes within the ambit of Intellectual Property. Trade mark is oldest intellectual property. A Trade Mark provides protection to the proprietor of the mark by making sure that the exclusive right to use or to allow other to use it in return for payment. Trade Mark helps traders in gaining recognition in the commercial world by distinguishing his goods from that of the others and by doing so marketing of goods or services becomes much easier. The distinctness which in turn helps in gaining recognition is achieved by adopting any mark, symbol or other device. Such mark or other symbol, name, word, or sign which distinguish goods or services of a trader from other is called “Trade Mark”.
Evolution of Trade Mark Law in India
First statutory protection to the Trade Mark was accorded by Trade Mark Act, 1940 by British in India. To cater to the significant development in field of business and trade since 1940, after independence Trade and Merchandise Mark Act, 1958 was passed by Parliament of India. Afterwards to meet with the requirements of Madrid Agreement the Trade Mark Act 1999 was passed which now applies to whole of India.
Trade Mark Act, 1999
The object of this act is to amend and consolidate all laws relating to and provide for registration and better protection. The Trade Mark Act, 1999 for the first time included ‘Services’ within the definition of “Trade Mark” and also defined first time “Well Known Trade Marks”. It made Registrar final authority relating to registration and certification of Trade Mark instead of Central Government. It provides for penalties for falsifying Trade Marks, false application of the Trade Mark with imprisonment and fines. It also provides for the International Arrangements made by India with other countries which gives citizen of India same privileges as is enjoyed by their own citizen with respect to the Trade Mark. The act has, inter alia, enlarged the scope of Trade Mark and also increased period of validity after registration/renewal from 7 to 10 years.
The term ‘Trade Mark’ is defined in Section 2(1)(zb) of The Trade Mark Act, 1999. The Act of 1999 added three more things in definition (a)Shape of goods, (b)Packaging of the goods, and (c)Combination of colours. This definition of Trade Mark makes Graphical Representation of Trade Mark necessity.
Essential of Trade Mark:-
- Mark (it is defined under section 2(1)(m) of Trade Mark Act 1999)
- Capable of Being Represented Graphically
- Shape of Goods, Packaging and Combination of Colours.
Benefits of Protection of Trade Marks:-
- It identifies a product and distinguishes it from other identical or similar products provided by competitors.
- It signifies all goods bearing a particular Trade Mark come from same source or origin.
- It provides assurance that the goods are of certain quality and consistency. It brings reputation for quality and reliability which is mutually beneficial to traders and consumers.
- It advertised the product. By advertising Trade Mark create and maintains a reputation.
- It creates a brand recognition which is a company’s greatest asset. Nowadays sometime brand have more value than capital of company itself.
- It provides lifelong protection and will remain alive lifelong for business if renewed regularly after every 10 years by giving a renewal fees.
- It gives exclusive right on Trade Mark to the proprietor and in case of infringement it gives the protection.
Procedure of Registration of Trade Mark:-
Any person claiming to be a proprietor of the Trade Mark may apply in writing to an appropriate Registrar appointed for the purpose by Central Government within whose territorial limit principal place of business in India is, in a prescribed manner. After the application is accepted, an advertisement is issued within 6 months of the acceptance in Trade Mark Journal to give third parties an opportunity for opposition. Opposition should come within 3 months from the date of advertisement. It opposition to registration comes the Registrar then hears both the parties and recommends correction and amendments of the application. Afterwards Registrar enters The Trade Mark on the Register. This registration is for the period of 10 years, but it may be renewed indefinitely on the payment of the prescribed renewal fees.
Difference between Registered Trade Mark and Un-registered Trade Mark
Registered Trade Mark is denoted as- ®
Un-registered Trademark is denoted as- ™
Registered Trade Marks are protected under Trade Mark Act, 1999 under infringement procedure. The prima facie validity, as certificate of registrar is available which acts as presumption in favour of proprietor and it is duty of defendant to prove otherwise. The protection is given from the date of the registration. It is territorial in nature (enforceable in territories where registered).
In case of Un-registered Trade Mark the protection is given under Common Law Principle under Tort of Passing off procedure. It is duty of owner to prove that he is the Original or he is main Trade Mark owner. The date of protection is very difficult to specify it can only be given after complaint to court unless it is well known Trade Mark. The protection is extra territorial in nature it may be protected by Common law principle where it is in practice.
In a larger sense, Trade Mark promotes initiative and enterprises worldwide by rewarding the owners of Trade Mark with recognition and financial profit. Trade Mark protection also makes sure that competitors who counterfeits and make inferior product or services cannot use the similar distinctive marks.
A Trade Mark confers Trader whose mark it is a right to say, “Do not imitate my mark in connection which good like mine, so that yours may be mistaken for mine”.