In today’s commercialized world with cut-throat competition, like the Patents, Copyrights and Designs of the invention, it is very important to protect the unique identity or brand associated with a business in the market. It is not only needed to keep your identity distinct from your competitor but also it is very essential for building an image of trust in the minds of the consumers. The unique name, sign, or symbol associated with a brand or business is known as a trademark. Though getting a trademark registered is not mandatory, it is a useful asset to provide legal protection to the unique identity of the business.
In this article, we will discuss the meaning, concept, and definition of the TM as per the Trademark Act, of 1999. Further, this article will thoroughly explore the process of registration of a trademark along with the rights of a TM holder. Lastly, it will focus on the infringement of a TM and the remedies available to a TM holder.
Meaning of Trademark (TM)
A trademark is an intangible asset that grants exclusive and absolute rights to an individual to use its brand, logo, colour or any other distinctive mark. A TM is a special name, word, or symbol that sets apart one company’s products from another’s. Using a TM makes it easier to sell goods or services because people recognize and trust products with that TM. The holder of a trademark can stop other companies from using the same name or symbol.
Having a TM is good for business because it helps substantially with marketing. A trademark might not always be a well-known brand, but every brand has a TM. Sometimes, people get mixed up between trademarks and brands. A brand could be just a symbol or picture, but a trademark is a specific sign or symbol used by a business. People trust and like products with a unique trademark because it shows the product’s quality. A trademark could be a logo, picture, or catchy phrase.
Definition of Trademark
As per the Trademark Act 1999, A trademark may be a word, symbol, or picture relating to a business, goods or service which is used to show that they are different from the competitors’ business. It helps customers know what they’re buying and trust its quality. Trademarks can be made up of logos, words, colours, or even a mix of these. Famous examples include Louis Vuitton’s check pattern, Cadbury’s purple colour for chocolates, and Coca-Cola’s bottle design. Other trademarks you might recognize are Dettol, Rolex, Nestle, Sun Pharma, Theobroma, Mont Blanc, and many more.
Trademark Law in India
Before 1940, there was no law governing TMs in the country and it was causing multiple problems in the business domain. Though some laws dealt with these issues, like the Specific Relief Act, of 1877, and the Indian Registration Act, of 1908, they weren’t enough to solve all the problems. So, in 1940, India enacted a new law specifically for TMs because trade and business were growing, and people needed protection for their TMs.
After some time, the TM Act, of 1940 was replaced by the TM and Merchandise Act, of 1958. This new law was enacted to give enhanced protection to TMs and stop fraudulent usage of TMs. Under this Act, registration of a trademark was introduced so that a TM holder can claim legal protection against the violation.
Then, in 1999, the government of India enacted another law called the Trademark Act, 1999. The new law was introduced on the recommendation of the World Trade Organization (WTO). Under this Act, comprehensive provisions were laid down to ensure maximum protection for the trademark holders and provide penalties for the offenders. This Act even empowers the police authorities to arrest people who violate trademark laws.
Types of Trademarks
In India, there are various types of trademarks, which can be used by the person according to his need. Let us discuss each of them one by one
Service Mark
A service mark refers to any symbol, name, emblem, or word deliberately used to distinguish and identify the services rendered by one business from those of competitors. Unlike TM, service marks exclusively relate to services rather than tangible goods. They find applications across various sectors such as sponsorship, hotel accommodations, entertainment, etc. The service marks play an important role in marketing and facilitating the sale of products or services. It serves as an indicator of the origin of a service, similar to how a TM signifies the source of a product.
Collective Marks
A collective mark is used by either employee collectively, a group working together, or members of an associative body to give a unique identity to the goods or services. This type of mark is mainly used by professional bodies, such as the CA symbol for the Chartered Accountants and Advocates for the lawyers.
Certification Marks
A collective mark serves as confirmation that a particular action has been completed or a legal requirement has been fulfilled. It assures consumers that certain qualities of goods or services associated with the mark have been certified. As per the TM Act 1999, a certification mark can identify goods or services traded, certified by the mark’s owner regarding various aspects such as their source, production methods, quality, or other characteristics.
For goods or services to be eligible for certification under this Act, they must meet certain standards and be registerable as such. The owner of the certification mark is entitled to register those goods or services that meet these criteria under their name. Registration procedures for certification marks are outlined in the Trademark Act of 1999, ensuring that the products or services meet the necessary certification requirements.
Trade Dress
Trade dress refers to the visual elements of a product’s appearance or the design of a building, including its packaging, that identifies the product’s origin to consumers. This concept falls under intellectual property law and its purpose is to safeguard consumers against packaging or product appearances that look like other products.
Rights of a Trademark Holder
As per the Trademark Act, of 1999, various rights are granted to trademark owners, which are as follows:
Exclusive Rights
A trademark holder enjoys exclusive rights as per section 28 of the Trademark Act, 1999, allowing him sole commercial use of their trademark. This exclusivity ensures that only the owner can authorize goods or services under that mark, preventing others from using similar marks for marketing purposes.
Legal Protection
Trademark registration offers legal protection against piracy. Owners can assert their rights and take legal action against infringement by contesting similar marks during registration.
Licensing and Assignment
According to section 38 of the Trademark Act, 1999, a TM owner possesses the legal authority to license or assign their trademark to others for a specified period. They also have the option to sell their TM.
Brand Reputation
A registered TM is instrumental in building a brand reputation. It provides a distinct identity for the business and helps differentiate its products or services from competitors, facilitating a standout presence in the market.
Rights of Correction
Also, as per section 58 of the Trademark Act, of 1999, TM owners can make corrections or changes to their trademark, such as name, address, logo, and registered classes, as needed.
Trademark Registration Process in India
Conclusion
In the age of Intellectual Property rights, TM stands as the strong pillar of protection for businesses and safeguarding their brand’s identity and reputation. Throughout this article, we have learnt about what is a trademark and why a trademark is important for our businesses.
By understanding the trademark, it is clear that it is a unique identification which is not already in use by another entity. This identification not only mitigates the risk of infringement but also strengthens the enforcement and uniqueness of your TM.
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