This article is written by MS SHAHEEN HIRANI, a 4th year law student of Keshav Memorial College Of Law.
The similarity of products lead to a gateway of an Intellectual property that is Trademark. A trademark is any sign that differentiates the enterprise of goods with such goods which are in competition to it in the market. It provides the customers to choose what actually is worth it and a wise man before purchasing any products looks into the relatable good or also the growing competing product in respective of it in the competing market. Trademark not only allows consumers to differentiate between various goods but also allow the manufacturers to mark their product uniquely.
BEGINNING OF TRADEMARK-
Earliest evidence of marking was found through branding of cattle’s and different animals. This was known with the wall paintings or cave paintings of the ancient Egypt.
In Rome and Greece ,the pottery jars were of necessity and when those were made the maker used to mention his name on the jar which was also considered as marking.
In China Porcelain was invented. The maker marked it with dates in identifying that which emperor reign that was made. Along with dates, the name of the maker would also be marked.
Evidences of marks on bricks and tiles were also found from Mesopotamia in Egypt.
Lamps and other articles made of clay belonging to ancient times also had markings on it.
Although the suppliers were individuals, the source of identification was necessary because of the demand from consumers for repeat orders.
In medieval times during 14th –16th century there was vast expansion of trade which resulted in increase of marks. And later on all this marks evolved as Trademarks in modern sense. The concept of Modern trademark began in 19th century in United State Of America as well as in England.
Therefore marks are not something which is complete a new concept or something Greek and Latin but it goes down to the very old times from the concept of human evolution began. But now in modern times it has got the momentum and thus its expanding rapidly also the major Globalisation and Urbanisation reaching to its peak is helping out with the growth of Trademark.
So lets find out the historic evolution of Trademarks in few of the major countries:
TRADEMARK LAW IN INDIA
In 10th century, marks with reference to merchants marks were increasing in traders and merchants. This was held to prove ownership rights of Goods. India has its own history with regard to trademark with several nations in issuing of rules and laws and in 1940 a new statute was formulated in India as “The Trademark Act 1940” it was replaced with the act “Trademark and Merchandise Act 1958”. This act was in practice for a quite long time until it was repealed in 1999 by a new enactment “The Trademark Act 1999”. This act majorly functioned on protection, registration and prevention of fraudulent use of trademarks. It has the inputs of TRIPS Agreement and therefore is practised under International system.
TRADEMARK LAW IN FRANCE
In 1803, France introduced a system named “Factory, manufacture and work place act 1803” in this act if there is any kind of infringing and any case of deceptive similarity it will conclude to crime. In 1857, a comprehensive trademark act was established in world by France as “Manufacture and Goods mark act 1857”. Therefore it underwent with major amendments in 1890 and 1944 and was replaced in. Currently the trademark law governed in France was legislated in 1991 and is still exercised.
TRADE MARK LAW IN ENGLAND
Earlier “The Merchandise Mark Act 1862” dealt with all the issues in relation to trademarks , its infringement , remedies any everything. A major system of Trademark was passed in 1905 which was again amended in 1919 and 1957. And following to frequent amendments, a new act was passed in 1938. Thus the UK Government now follows “ The Trademark Act 1994” in harmony with EU Trademark laws.
TRADEMARK LAWS IN GERMANY
Initially the “The Trademark Act 1874”, was method of governing about trademark. “The Trademark Protection Law 1894” replaced the former one. In present time “The German Act 1995”, governs the protection of trademark in Germany. In the same new, amendments were made in the year 2019 which were about-Introduction of certification marks, rules for anti-counterfeiting measures etc.
TRADEMARK LAWS IN UNITED STATES OF AMERICA
Earlier to formulation of any statutes, the common law protected the trademark here. The first statute named “Federal Trademark Act 1870” was introduced to protect and safeguard the trademarks. Not even a decade from its enactment in 1879, this was declared unconstitutional and abolished. Later in the year 1881 another act named “The Trademark Act 1881” was formulated to protect the interstate commerce. This was again amended in 1905, as it was held incapable to accommodate needs of economics.
Finally the “Lanham Act 1946”, was formulated for growing needs of trademarks law and a federal act to protect.
Few case laws explaining about Trademarks and its infringement are:
.RAVIKANTH SHINDE VS GUJARAT HEAVY CHEMICALS LTD AND ODRS
The respondent were manufacturing, stocking and marketing their product ‘kitchen salt’ under the trademark of “DANDI” with the pictorial representation in the background of man loin cloth bending for picking up something on seashore. The trademark and pictorial representation was held to be in violation of Emblems & Names Act 1950, since DANDI reminds the historical dandi march by Gandhiji.
According to section 9(3) ,is intended to prevent permanent monopolies being created under The Trade Mark, by reason of trade marks constituted by the shape of goods giving the proprietor a permanent and substantial advantage over his potential competitors.
.DM ENTERTAINMENT VS BABY GIFT HOUSE AND ODRS
Daler Mehndi, a sensational pop star of Punjab created a huge audience and is immensely popular in Punjab pop culture. The appellant company was formed to look after the rising career of the star. The defendant had prolific business of selling miniature toys of Daler Mehndi which affected the reputation of the star. The aggrieved company filed for permanent injunction from infringing the artist rights of publicity and false endorsement. It was further added by the plaintiff that such act is done for exploitation without the permission of the authorised person and constituting to infringement of person’s right to publicity. Section 29 of trademarks act 1999 explains about the aspects of infringement of trademark and the concept of passing off isn’t explained well in it as it is derived through judicial precedents. Therefore the court meted out a compensatory amount of Rs 1,00,000 to the plaintiff. The intent of judiciary is clear.
.NEW ZEALAND MILK BRANDS LTD VS SANOWARA DAIRY INDUSTRIES LTD 2010
In this the case the High Court stated that the only test applied when court considered a case under section 10, is to test of identify and resemblance. Even if applicant and respondent likelihood of deception and respondent registered it first the applicant application cannot be registered. Therefore before registering a trademark it is necessary to do a Trademark search.
Your trademark is your greatest asset. It doesn’t have a tangible form, the profit that it generates isn’t abstract. It is of vital importance to understand, recognise and acknowledge the trademark in helping business to grow their companies. One must very well have a research done before registering the trademark, because there is higher chances of similarity and will lead to some unnecessary procedures and may also one can loose it over the other. The more distinctive your trademark is that difficult it will be for the person to copy and thus greater chances of having its legality and acceptance done quicker.
REFERENCES
1.DR G.B.REDDY -INTELLECTUAL PROPERTY RIGHTS AND THE LAWS
2.V.K.AHUJA-LAWS ON INTELLECTUAL PROPERTY
3.pdslegal.com
4.indiankanoon.co,
5.igerent.com
6.legalbites.in
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