Shreya Mundra talks about Trademark Laws in India.
INTRODUCTION
Trademarks in general terminology would be any visual mark which is being represented graphically or which is capable of being distinguished from any other particular good manufactured or from mark which is already being dealt by any other person.
Trademark is a very essential mark to the owner as it distinguishes his product from another product thereby guaranteeing the quality of the product and thereby image of the product is created. Trademark in simple context makes sure that the mark used is distinctively different from any other mark thereby not creating any confusion in the mind of general public.
The unique feature of trademark is that, if there is an infringement, a proper judicial action could be taken for the same even if the trademark is not registered but has a well known identity in the class of public.
For E.g.: Let us assume the brand Maybelline New York is not registered and if another manufacturer uses the same name as it is not registered then the former can sue him as his brand is a well known trademark on the basis that his product is in the market since a very long period.
Another distinguishing character of trademarks from all the other Intellectual Properties (IP) like Copyright, Patent is that this mark can always be renewed. The period of a registered trademark is 10 years and can be renewed for period of 5 years every time on its expiry unlike other IP’s
There are certain forms of trademark; few of them are listed below.
- Letter Mark – As the title itself suggests us the meaning, it means a mark which includes letter are called letter mark. The famous ones like IBM or LG are examples of letter mark.
- Color Combination –When the mark has a certain color combination to distinguish itself from any other mark it is a color combination mark. One of the major example of this is MC Donald’s, it has a color combination of red and yellow.
- Shape of goods: Any shape of the good could be registered for e.g. if there is unique shape of a soap or a toothpaste the same can be registered.
*However the list is illustrative and not exhaustive.
There are certain other marks which are specifically mentioned in the Trademarks Act, 1999 called Collective Trade Marks and Service Marks where the former means a mark which is a species of trademark which can be registered where the latter is the one where a mark distinguishes one service from another service.
Another important trademark is a Well known trademark which means a trademark which either registered or not has become a substantial segment in the public and has a certain goodwill and reputation whereas certification mark is a kind of trademark where the mark does not indicate the trade origin of the mark but it indicates if the good or product is of a certain quantity or quality or accuracy like ISI mark.
Registration of Trademark
Any person who claims to be the owner of the mark which is either used by him or proposed to be used by him, can get the mark registered under the Trademarks Act. A single application will suffice for different class of goods and services.
Procedure for Application
Once the trademark is sought by the proprietor then he has to file an application before the trademark registrar for the purpose of registering of the mark. The registrar has right to either accept or reject the application based on absolute and relative grounds for refusal under Sec 9 and 11 respectively. If the registrar refuses the application then the refusal has to be communicated to the applicant with the reasons for such refusal.
If the application is accepted by the registrar then the mark is to be advertised by the registrar in the trademark journal where it invites any opposition from any interested person who thinks if the mark is registered, it would affect his already existing mark. The opposition has to reply within 3 months from the date of application with the prescribed form and prescribed fee. The registrar then hears both the sides and if the decision is in favour of the applicant, the mark is then granted to the applicant.
However the mark has to be granted to the applicant only if it has a distinctive character which does not merely consists of a mark which serves in the trade to designate the kind, quality or quantity.
