TRADEMARKS IN INDIA
As per the trademark law in India, a trade-mark is a distinctive sign which identifies certain goods or services as those produced or provided by a specific person or enterprise. When a trademark is used in relation to services rather than products, then it is referred to as a service mark.
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
A trademark may be designated by the following symbols:
™ – For an unregistered trademark/service mark i.e. a mark used to promote or brand goods/ services
®- For a registered trademark
A trademark is typically a name, word, phrase, logo, symbol, design, image, or a combination of these elements. Apart from the said traditional trademarks, the Indian Trademark Law also recognizes un-conventional trademarks such as three- dimensional marks, shape marks, color marks, sound marks, and holograms.
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: