Trademarks – Everything that you need to know
Introduction:
- We acknowledge individuals by their qualities therefore will we have a tendency to acknowledge product by their producing firms. differing kinds of individuals prefers differing kinds of product from totally different firms.
- But the manufacturer cannot represent their product to every of their shoppers. For this purpose, they let their emblems represent their company.
- In layperson language, emblems area unit brand which might be words, letters, symbols, signature, labels, numbers, logos and even color speaks.
- Trademarks is therefore vital as a result of it offers trust to their customers. So, it should distinguish the merchandise from the competitor product.
- ALSO READ – INFRINGEMENT OF TRADEMARK
- ALSO READ – Grounds of Refusal of A Trademark
- ALSO READ – Generic Trademarks: Towards Establishing a Comprehensive Judicial Formulation
- ALSO READ – Trademarks and Their Applicability in Various Avenues of the Sporting World
Historical background:
- Since ancient amount, trade exist in India therefore will emblems. Indian craftsmen accustomed place their marks on their works before causing it to foreign nations like Rome, Iran etc.
- Increasing trade activities in medieval amount, usage of emblems additionally accrued. nowadays emblems area unit essential because of the increasing competitions among firms United Nations agency area unit having branches worldwide.
- For those worldwide brands, emblems becomes tool of communication between manufacturer and also the shopper.
Definition of trademark:
- Section 2(zb) of trademark act,1999 declared that “trade mark” suggests that a mark capable of being drawn diagrammatically and that is capable of distinctive the products or services of 1 person from those of others and will embrace form of products, their packaging and combination of color.
- Section 2(m) defines ‘mark’ as device which can embrace complete, labels, heading, tickets, name, words, letters, signs, colors and combination of colours.
- In the Anglo Dutch Paint and color Works and Warmish (P) restricted v. India mercantilism House AIR 1977 PTC 429 it had been command that mark in regard to trademark could or might not be a mixture of letters, figures, signs and hues.
Four main functions of trademarks:
- It identifies the products / or services and its origin
- It guarantees its unchanged quality
- It advertises the goods/services
- It creates a picture for the goods/ services
Key options of trademark:
- Trademark should be distinctive
- Trademark should be utilized in commerce
- Trademark should guarantee its product
- Trademark should determine the merchandise and its origin
Essential of trademark:
- Easy to know
- Capable of being delineate in an exceedingly single word
- Capable of being Triticum aestivum spelta properly and written decipherably
- It ought to be short and enticing
- It ought to be capable of distinctive one sensible from another
- Should be simple to pronounce
- It ought to be capable of denoting a specific company, complete or organization.
Functions of trademark:
- Distinguish one’s product from those of another: enable shoppers to tell apart my product from another’s by affixing a trademark to the products.
- Indicate the Origin: Inform shoppers that product with identical trademark originate from identical supply.
- Guarantee Quality: Guarantee shoppers that every one product with identical trademark have identical quality.
- Advertising: cue shoppers of the products related to a trademark as a promotional technique in industrial transactions.
Legislations for trademarks:
- The capital of Spain Agreement, 1891
- The visits Agreement of Trade Marks, 1995
- The Paris Convention, 1991
- The Trade Marks Act, 1999
- The Trade Marks Rules, 2002
Trade Description [Sec. 2 (za)]
Any info, description or statement of a product or service connected with:
- Quantity, weight, standard
- Weight, quality and its contents
- Fitness and suitableness
- Place and country
- Name and address of registered workplace
- Mode of manufacture
- Any alternative info needed as declaration is thought as ‘trade description.’
False Trade Description [Sec. two (i)] – Any description that is deceptive or that is analogous to alternative trademark within the kind of deceptive similarity is thought as false trade description.
Deceptive Similarity [Sec. 11]
- It could be a downside of trademark within the name of deception, confusion, similitude.
- Whenever a trademark is analogous to alternative trademark with the intent to deceive or Cheat the client by means of comparable mark or visual description it’s called deceptive similarity.
- There area unit 2 forms of factors that is to be examined for the aim of Confusion, deception and similitude
- Phonetic similarity
- Visual similarity
Application:
The application ought to be filed in triplicate with the subsequent particulars –
- Graphic illustration of the trademark.
- 5 extra representations area unit to be provided corresponding specifically with each other.
- within the case of 3 dimensional mark, the replica of the mark ought to include a 2 dimensional or photographic replica.
- wherever the trade mark contains a word or words in scripts apart from Hindi or English, a written text and translation of every word in English or in Hindi ought to run indicating the language to that the word belongs, at the time of filing the applying to facilitate completion of information entry at the initial stage itself.
- the applying could contain a declaration claiming priority as per the Paris Convention.
Registration of Trademark
section fifteen (3) makes provision for registration of trade mark as series in respect of identical or similar product /services wherever the marks, whereas resembling one another within the material particulars thence and however take issue in respect of –
- Statement of products or services in regard to that they’re severally used or projected to be used
- Statement of variety, price, quality or names of places
- alternative matter of a non-distinctive character that doesn’t well have an effect on the identity of the trade mark
- Colour
Procedure for registration of Trademark
- An application for registration of emblems is received at the pinnacle workplace of Trademark register, Mumbai and its branches in step with territorial jurisdiction.
- Applications area unit then examined principally with relevance the distinctiveness, risk of dishonesty and conflicting emblems.
- The registrar on thought of the applying and any proof of use or distinctiveness decides whether or not the applying ought to be accepted for registration or not, and if accepted, publishes identical within the official gazette i.e. Trade Marks Journal (published in CD-ROM).
- Within a prescribed amount a person will file Associate in Nursing opposition, a replica of that is served to the candidates United Nations agency is needed to file a counterstatement inside 2 months failing that the applying shall be treated as abandoned.
Thereafter, the opponent leads evidence in support of his case by way of affidavit followed by the applicant’s evidence also by way of affidavit in support of the application.
After that the opponent files evidence by way of rebuttal. On completion of evidence, the matter is set down for a hearing and the case is decided by a Hearing officer. The registrar’s decision is appealable to the Intellectual Property Appellate Board.
Almost all functions of the Registry have now been decentralized and executed by respective offices except publication of journal, issuance of Registration Certificate and post registration activities including renewal which is done at TMR, Mumbai (Head Office)
Types of trademarks:
- Product mark
- Service mark
- Collective mark
- Certification mark
- Shape mark
- pattern mark
- Sound mark
- label
- letter mark
- Brand
- Color mark
- Numerals mark
- Packaging mark
The mark itself can show us what kind of mark is the product, we can see the below mentioned sings in anywhere near the mark which talks about the nature of mark.
Important cases:
Bombay Oil India (P) Limited v. Ballarpur India (P) Limited AIR 1989 it was held that when a trademark is phonetically similar with other trademarks, (SAFOLA – SAPOLA) such trademarks can’t be registered.
In the case of Ess Corporation Sanitation Delhi v. Mascott India Limited AIR 1982 it was held by the court that for registration of a trademark, the words deception, confusion and resemblance must be defined in the following context:
- When it is related with similar product and services
- According to the nature of mark,
- According to the gravity of similarity
- Class of purchasers
- Surrounding circumstances
In the case of Paton & Co. v.Snelling Lampard & Co. it was held by Justice Romer that in case of deception, confusion and resemblance, if the ignorance of the buyer is involved, such factors can’t be determined.
In the case of S. N. Dychtm Ltd. v. Cadbury India (P) Ltd. AIR 2000 PTC 392,it was held by the Hon’ble Supreme Court held that phonetically resembling trademark deceiving the consumers like PICNIC and PIKNIK can’t be registered.
In the case of Pidilite Industries (P) Ltd. v. Mitter Corporation Limited AIR 1989 Del. 1157 it was held that if two trademarks are visually similar and identical (Fevicol and Trevicol) then such marks shall not be registered.
Reference:
HANDBOOK ON INTELLECTUAL PROPERTY RIGHTS IN INDIA – Rajkumar S. Adukia
Author: K Sangeetha,
Government law college, chengalpattu