Indian Trademark Act
Indian Trademark Act
rademark is a type of intellectual property. A trademark, generally, is a visual symbol, word signature, Name, Label, Sound, Smell or combination of colors etc. A trademark is used by entities to distinguish themselves / or their offerings from others.
The Trademark Act provides extensive definition of a “mark” under Section 2 (m). According to the definition a “mark” includes device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colors or any combination.
Trademarks are governed under Trademark Act 1999 in India.
A trademark can be perpetual, if an entity keeps on renewing it time to time. Coca Cola is trademark for more than a century.
Under the Trademark Act 1999, the requirements are:
- A mark should be capable of being represented graphically; there are special cases where marks are awarded to smell too.
- Capable of distinguishing the goods or services of one entity from another
- Used or proposed to be used for goods or services commercially.
Simply put – “A Trademark should be easily distinguishable.”
Under section 2 (zb) of Trademark Act 1999 defines a mark capable of being represented graphically and is capable of distinguishing the goods or services of one person from those of others. So a trademark should be selected that can be distinguishable.
One should try to have a coined word as trademark such as our Name – ProdyoVidhi. This word is a coined word from Prodyogiki (Sanskrit word for technology) and Vidhi (Sanskrit word for Law). One must avoid using adjectives; names as such cannot be trademarked. A geometrical design is a good representation of a mark, so one can consider the geometrical design also besides words.
An entity claiming to be owner of the mark can apply for a trademark. It can be a person or an organization.
No it is not. However, in case of a dispute or litigation a registered mark provides an edge. In fact one can use TM for representing an unregistered trademark for claiming the right. A registered trademark is represented by R in the circle ®.
It is advisable to protect your identity as a Trademark because it gives unfair benefits to an offering, a brand or a company. An example of this can be when someone says “Tata” – a lot of people in general imagine – Trust and honesty. That is the power of trademark.
- The origin of an offering can be easily identified such as noodles can be any but Maggi is only one.
- Trademark helps create and maintain an image in the prospective buyer’s mind such as reliability is associated with Toyota Cars
- Trademark guarantees unchanged quality in the minds of customers once again Toyota cars for example
- Trademark helps in advertising the offerings of an organization
As explained above a registered trademark offers competitive advantages to an entity. Indian law providers the owner of trademark some specific rights. These rights are
- Provides exclusive rights to the owner, generally in territory
- seeking relief on infringement
- Stop unlawful use of trademark
- Monopoly for the specified period, can be owned ‘perpetually’
- Grant a license to another person at a fee
- Sell trademark, give away in a will
- Mark trademark with the ® symbol
- In case of litigation onus of proof shifts on the plaintiff (who filed case)
Prima facie presumption is raised in favor of the Registrant (Defendant)
It is advisable to conduct a market survey to ascertain if same/similar mark is used in market. We have seen startups getting into soup for unintentionally using someone else’s trademark.
In India a Trademark can be filed online.
There are different classes under which a trademark can be filed. These classes are defined for services (Service mark) and mark (Product). We are going to publish the list of Classes of goods and services soon.
Strictly speaking there is no international trademark. Every country or territory has specific trademark law and one needs to file trademark in required country for protection. There are different treaties for protection of intellectual properties in different territories. The best thing is – for trademark also there is such treaty. One can apply for trademark in required territory via Madrid Protocol. India is a signatory of Madrid system. If you want to apply for trademark in different country you can route your application with this approach.
A correction request can be made, however please keeping in mind that there should not be a substantial change in the identity. In fact one can request for correction not only for the application but also for a registered trademark too.
Disclaimer : For more information please reach out to us. The FAQs are general guidelines for helping you make some IP protection decisions. The FAQ responses should not be construed as express advice on the matter. Do not assume select part as “expert advice on a specific matter”; please consult our experts separately for detailed view on specific case/situation or business scenario.
