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Intellectual Property

Trademarks

TRADEMARKS IN INDIA

Trademark and Brand names play a very crucial role, as they act as a source of identity for any entity. Owing to the increase witnessed in IPR awareness in the recent past, entities are aggressively protecting their trademarks. The Trademark landscape in India is also nurturing day by day and entities and individuals in the quest to protect their mark from being copied are leaving no stone unturned.

A trademark performs the following functions:

  • Renders an exclusive right on the owner of the mark to use the trademark to identify good produced or services rendered by it;
  • Prevents others from making fraudulent use of the mark;
  • A trademark owner can commence legal proceedings of trademark infringement for preventing unauthorized use of his registered mark by third party;
  • An unregistered trademark can be protected under the common law principle of passing off;
  • Prevents unfair competitors from the usage of similar or deceptively similar marks;
  • Protects the skill and intellect of any company

The Trademark law in India is primarily governed by the Trademark Act, 1999 and the Trademark Rules of 2017. The Act and Rules enumerate the procedural aspects of trademark filing, examination, publication, opposition, registration, renewal, rectification and removal of a trademark. Similar to Patents, the Chief administrator of the trademark system in India is the office of the Controller General of Patents, Designs and Trademarks (‘CGPDTM’) functioning under the aegis of Department of Industrial Policy and Promotion (‘DIPP’), Ministry of Commerce and Industry.

The whole process of successful registration of a trademark involves several stages- right from trademark search to trademark registration and further renewal. Each stage involves fulfilment of procedural requirements and documentation.

Read How to register trademark in India?

Here it would be pertinent to mention that in a significant move, in the year 2013 India also acceded to the Madrid System of Trademark Registration which allows registration of a trademark in multiple jurisdictions. Pursuant to this the Indian Trademark Office also released rules and guidelines for International registration of trademark under the Madrid System.

Madrid Protocol: Guidelines for functioning in India

Origin and Evolution of Trademark Law in India:

The origin of Trademark Law in India can be traced back prior to 1940 when common law principles of equity and passing off were administered for protection of trademarks. In view of the lack of any specific legislation dealing with the nuances of infringement and passing off of trademark, the Indian Trademark Law was passed in the year 1940. The statutory provisions in the Trademark Law substantially corresponded with the English Laws and precedents.

Thereafter, considering the augmentation in trade and commerce, a need was felt by the Legislature for robust proprietary laws and accordingly the legislature replaced the Act of 1940 with Trademark and Merchandise Act, 1958. The 1958 Act was passed with the objective of extending better protection to trademarks and it also consolidated provisions relating to trademarks in other Statutes like the Indian Penal Code, Criminal Procedure Code, and the Sea Customs Act.

In order to conform to the requirements of Trade-Related Aspects of Intellectual Property Rights (TRIPS) and in view of enhanced globalization of trade and technology, the Trademark Act, 1999 was passed by the Legislature which came into effect on September 15, 2003. The Trademark Act, 1999 inter alia aims at providing for the registration of service trademarks and collective trademarks, enhanced protection to marks categorized as well- known marks, the constitution of Intellectual Property Appellate Board (IPAB) for speedy disposal of appeals and rectification applications.

Thereafter in the year 2010 the Trademark Act, 1999 was amended vide the Trade Marks (Amendment) Act, 2010. Through the Trademark (Amendment) Act, 2010, the Legislature incorporated Chapter VI in the Act which embodies Special Provisions Relating to Protection of Trademarks through International Registration under the Madrid Protocol. Thus, the Indian Trademark Law covers national as well as international trademark registrations within its purview.

Apart from the aforesaid statutory provisions, the Indian Judiciary has played an elementary role in evolving the Indian Trademark Law. Time and again the Indian Judiciary has been confronted with cases containing contentious issues relating to trademarks and has accordingly delivered judgments with respect to them. These judgments and observations of the Judiciary have become the foundation of present Trademark Law in India.

Laws governing Trademark Law in India:

Trademark Act, 1999

Trademark Rules, 2002

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