Trade and commerce is the base of the economy of a country. The modern era is the time of competition in every field. The goods are being traded by their different names which indicate the quality and identity of the goods.
A trademark is a symbol in the form of lines, words, devices, or labels used for commerce to indicate the public about the quality of goods.
Section 2(ZB) of the Trademark Act, 1999 defines “a mark capable of being represented graphically and which is capable to differentiate the goods or services of one person the others.”
Section 2(m) defines Mark as “a brand, device, heading, ticket, label, signature, name, shape, letter, word, numbers, and shape of goods or combination of colors”.
Object of Trademark
The main objective of the Act is to protect the trademarks for goods and services from fraudulent use. It is also different from other Intellectual property rights because the protection for a trademark is for an indefinite time provided that there should be a renewal of trademark, from time to time.
Salient features of the Trademark act
- Provides the registration of trademark services.
- Maintaining the registration.
- Simplifying the procedure for registration.
- It provides a speedy trial for the disposal of cases.
- Punishment for the offenses related to Act.
- Prohibiting the use of other’s trademark.
- Increasing the registration period from 7 years to 10 years.
- Making the trademark offense cognizable.
Characteristics of Trademark
There are certain essential characteristics:
- It is a property and entitled to protection under the Act.
- Its connection is with the goodwill of a business. That’s why the law does not recognize the transfer of Trademark.
- Right against infringement.
- Distinctiveness is the basic quality of the Trademark.
Essentials for a Good Trademark
- It should be easy to pronounce and remember.
- It should be capable of being described in a word.
- Should spell correctly
- It should be short.
- It must be attractive to the eye.
- Must satisfy the requirement of trademark registration.
Functions of Trademark
Its function is to indicate to the purchaser about the quality of goods. The goodwill of a product can also be taken through its Trademark.
There are four types of functions:
- Identifies the product and its origin. Example- Videocon, TATA sky.
- It guarantees the quality of the product. Example- Colgate, detol, etc.
- Use for the advertisement of the product. LUX as a popular name of the soap.
- It creates the image of goods in the mind of people. PARLE-G.
The term of the trademark is infinity. There is no limit to take a specific trademark, but there are some legal conditions which should be performed by the owner of the trademark. The trademark is registered for 10 years but it can be renewed after 10 years by pay some charges under a specific period. After giving the charges, the trademark will be renewed for the next 10 years.
Procedure for registration
The procedure for registration is given under the Act which is as:
Who can apply?
Any person who is desirous and claiming to be the proprietor of registering shall apply in writing to the Registrar in the prescribed manner for registration.
Place of filling the application
Every application shall be filed in the territorial jurisdiction office of the trademark registry.
Acceptance or refusal of the application
The Registrar may accept or refuse to accept the application. But in case of refusal, he will give the reasons for the refusal of the application.
Advertisement of application
After the acceptance of the application, the application will be advertised in the: Trademark Journal”.
Opposition of applications
The period of 3 months is given for opposition after the advertisement of the application. If any person is opposite to that application he can apply to the opposition with a fee to the Registrar in the prescribed manner.
The Registrar will send the notice to both parties for the disposal of the case. After the judgment, if the opposition will win, the application will be rejected.
After the acceptance of the application and disposing of the objections, the Registrar will issue the Trademark certificate to the person applied for the trademark.
Other forms of trademark
There are other forms of the mark which may also be related to [trademark]:
Service marks mean any service of transport, estate, hotels, lodging, processing, etc. like- Logo of SBI, ICICI, LIC, IDBI, etc.
It means a mark distinguishing the goods and services of the members of the association. Trade-mark belongs to an individual whereas the collective mark denotes the association of persons, except partnership.
Certification trade-mark means the marks which distinguish and certify the quality of the goods and services from another.
These are the marks that become very common to everyone and show the connection in the course of trade. Like- Reliance, Jio, Bata, Parle, etc.
Internet Domain Name
In the modern period, the computer and the internet are becoming a more useful product to do the business. The name of the site which is used to sell the services or goods is known as the Internet domain. Like- www.amazon.com, flipcart.com, etc.
With the advancement of competition and technology in marketing, the new categories of marks are emerging day by day. There are some examples of the latest marks:
- Sound mark
- Smell Mark
- Taste mark
- Holograms and Moving images
- Shape of goods
Trade dress is also a type of trade-mark where the services or goods of a specific trade are makers perfectly like its colors; its package shape etc. Trade dress helps the illiterate people to find that specific thing when the unable to read the name of trade-mark.
Rights of Holder
There are various rights which are granted by the Act:
Right to exclusive use
Exclusive Right to use the registered trade maker about goods or services.
Right to assign
The holder has the right to transfer his rights through license or assignment or his mark.
Right to seek legal remedies
The holder has the right to seek remedies in case of infringement.
Right to seek correction
The holder has the right to apply for correction in the register related to name, description, or address.