Trademark is a visual form of a word, a device or a label applied to an article of manufacture or commerce with a view to indicate to the purchasing members of public about the origin of the manufacture of goods affixed with that mark. It distinguishes such goods from the goods manufactured by others in the trade.
As an intellectual property trademark has got a special characteristic compare to other forms of intellectual property. A registered trade mark can be protected in perpetuity subject only to the conditions that it is used and renewed periodically. It is interesting to note that the first trademark registered in U. K. under No. 1 of 1876 consisting of a red equilateral triangle in respect of alcoholic beverages is still in force.
Trade mark must be a mark, which includes a device, brand, heading, label, ticket, mane, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any other combination.
Law applicable in India
The law protecting trademarks in India was governed by The Trade and Merchandise Marks Act, 1958, which has now been replaced by The Trade Marks Act, 1999, which is yet to be brought into force.
Need for registration of trade mark
A registered trade mark protects the owner of the mark by ensuring the exclusive right to use it to identify goods or services. Trade mark identifies the product and its origin, it guarantees its unchanged quality, it advertises the product and it creates an image for the product. It is a link between manufacture and customer. In short, a trade mark plays an important role in establishing commercial reputation for the product.
Registrable trade mark
A trade mark is registered if it satisfies the following two requirements :
- It is capable of being represented graphically
- It is capable of distinguishing the goods or services of one person from others.
Grounds for Refusal for registration
Not all words, names, symbols or devices function as trademarks. For example, matter, which is merely the generic name of the goods on which it is used, cannot be registered. The Office will refuse to register matter if it does not function as a trademark.
The grounds for refusal may be summarized as:
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| I) |
The proposed mark consists of or comprises immoral, deceptive, or scandalous matter; |
| ii) |
The proposed mark may disparage or falsely suggest a connection with persons (living or dead), institutions, beliefs, or national symbols, or bring them into contempt or disrepute; |
| iii) |
The proposed mark consists of or comprises the flag or coat of arms, or other insignia of any foreign nation; |
| iv) |
The proposed mark consists of or comprises a name, portrait or signature identifying a particular living individual, except by that individual's written consent; |
| v) |
The proposed mark so resembles a mark already registered, and that use of the mark on applicant's goods or services are likely to cause confusion, mistake, or deception; |
| vi) |
The proposed mark is merely descriptive or deceptively misdescriptive of applicant's goods or services; |
| vii) |
The proposed mark is primarily geographically descriptive or deceptively geographically misdescriptive of applicant's goods or services; and |
| viii) |
The proposed mark is primarily merely a surname. |
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Registration of trade mark
Any person claiming to be the proprietor of the mark can make an application for registration. Before or after making an application for registration, it is advisable on the part of the applicant to apply for search and report as to whether the mark or one similar to it has already been registered or applied for. After the application is received, the Registrar of Trademarks will examine the same to ensure that they comply with the requirements of the law and that they do not conflict with marks which are already registered, or which are the subject of earlier pending applications. In case of any objection the Registrar will communicate the same to the applicant. The Registrar will conduct a hearing and give a decision regarding such objections. If no objections are received, the Registrar will enter the mark in the Register of Trademark and issue a certificate of registration to the applicant. The certificate of registration is valid from the date of application for registration.
Term of trade mark
The term of trade mark in the first instance is of seven years, which can be renewed from time to time by paying the renewal fee.
Renewal of trade mark
The term of trade mark is renewable. If the mark is not renewed by paying prescribed fee within prescribed time period it will be removed from the registered but it can be restored if a request for restoration is made within one year from the date of expiry of registration or last renewal.
Service mark
Service mark is one which distinguishes the service rendered by one person from those of others. Service means service of any description which includes service in connection with business, communication, finance, insurance, real estate, transport and so on. Getting it registered can protect such service marks used by business rendering various kinds of services. |
