In today’s world, we mostly identify products or the company with a logo or any distinctive mark that appears on the product. For example, we can easily identify a Mercedes or a BMW car by its logo solely. In the advent of a competitive market, the manufacturers started relying on these marks to make a “brand image” for the product and attract consumers. This mark is known as trademark. It also started increasing the goodwill of the company due to which the necessity to protect them was soon realized. The first international agreement for protection of trademark was Paris Convention for the Protection of Intellectual Property that was adopted in 1883.
In India, there have been various acts and legislations passed over the period to protect the trademarks like Indian Merchandise Marks Act, 1889, Trademarks Act, 1940, Trade Marks Act,1958 etc. The Trade Marks Act, 1958 was in effect for almost 40 years. Later India became a party to the Trade Related Aspects of Intellectual Property Rights (TRIPs Agreement) that bought in changes in the existing laws to conform it with the international laws. Hence the Trade Mark Act, 1999 was adopted and enacted on 15 September 2003.
Trademark laws are important as it primarily does not give room for confusion regarding the genuineness of the product or the company. It is directly attached to the goodwill and trust of the consumers on the company. The ingredients of a Trademark are-
- It should be a specific mark.
- It should be capable of being represented graphically.
- It should be able to differentiate the product bearing that from other products distinctively.
There is another kind of trademark known as certification mark. It basically gives the details about the place of origin, the accuracy, the quality and distinctiveness certified by the proprietor from other goods not so certified or registered under the Chapter IX of Trade Marks Act, 1999.
Sometimes a group of organization or companies together apply for one trademark for several products from the products of the other competitors in the market. It is known as collective mark.
Services provided by an organization or company can also be protected under the Trade Mark Act, 1999. These incudes the services provided like banking, communication, electricity supply, insurance, chit funds etc. these services are non-exhaustive in nature.
All the Trademarks can be registered in the Trade Mark Registry as given under Section 5 of the Trade and Merchandise Marks Act, 1958. The Controller General of Designs, Patents and Trademarks is responsible to maintain this register and the central government appoints other officers to discharge the functions effectively.
Registration of a trademark is not mandatory but can be done by the proprietor for the legal protection in case of any future issues. But the trademark is valid only if it is used in relation to the goods it has been registered to be used for otherwise it becomes ultra vires or void. Even if the trademark is unregistered, it does not mean that the user of the trademark cannot get benefit from the law. They can act under passing off by stating that the opposite person is trying to pass off goods in the name and goodwill of the original owner of the trademark. It is also known as common law rights of passing off.
With the cutthroat competition amongst the companies and products in today’s economy, the goodwill of the company is sure seen as the main asset of it. Newer and stricter policies are being devised and implemented to keep up with the competition, protect the interests and to keep their company ahead of others. Trademarks, copyrights, industrial designs etc. play an important role to protect the intellectual property. Abroad, these are being heavily and widely used to gain dominant position and achieve monopoly in the market. In India, though this laws are new, still they are being used to a large extent.
Aishwarya Says:
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