Trademark Act: An Overview


According to the Trademarks Act, 1999, a trademark is any distinctive feature, such as the appearance of a product's packaging or a particular color combination that can be represented graphically and used to differentiate one person's goods or services from those of others. The symbols TM or ® can be used to indicate a trademark, one of the components under intellectual property rights.

A collective mark is the name given to the trademark. The term "certification trademarks" refers to a specific type of trademarks. A trade mark may be referred to as a service mark when it is used in connection with services. By filing a lawsuit for infringement, one can prevent unauthorized third parties from using a registered trade mark. Passing off is a legal manoeuvre that can help shield an unregistered trade mark from unauthorized usage by others.

What is the Trademark Act?

A subset of intellectual property rights is trademarks. Individuals are able to keep ownership rights to their original works of art and creative endeavors thanks to intellectual property laws. Because it was made possible by human labor, intellectual property is restricted by a number of fees for registration and fees for infringement. Trademarks, Copyright Acts, Patent Acts, and Designs Acts are examples of intellectual property.

A name, term, or symbol that distinguishes goods from those of other businesses is known as a trademark. With a trademark, product recognition is guaranteed and made simpler, making the process of marketing goods or services much easier. The proprietor has the right to forbid a rival from using his mark or sign. A trademark is a marketing tool that helps a company raise more money. Although a brand is always a trademark, a trademark is not always a brand. Sometimes, the difference between a trademark and a brand is unclear. A trademark, which has a larger meaning than a brand name and can be more than just a symbol or logo, serves as a distinguishing sign or signal in a company organization. People are more persuaded by a trademark that stands out and conveys the product's high quality. A trademark might be a slogan, a logo, or a pictorial mark.

Trademark Law in India 

The Trademark and Merchandise Act, 1958, was adopted to replace the Trademark Act. By preventing unauthorized or dishonest use of trademarks on goods, it improves trademark protection. According to the Act, trademarks can be registered, giving their owner a legal right to their sole use. In order to comply with the TRIPS (Trade-Related Aspects of Intellectual Property Rights) duty recommended by the World Trade Organization, the Indian government replaced this prior Act with the Trademark Act, 1999. The Trademark Act's objectives are to protect trademark users, set guidelines for property usage, and offer legal recourse for the enforcement of trademark rights.

In instances of trademark infringement, the police are authorized to make arrests under the 1999 Trademark Act. The term "infringement," which is often used, is fully defined in the Act. The Trademark Act stipulates penalties and punishments for violators. Additionally, it lengthens the process of registering as well as the process of registering a non-conventional trademark.

Types of Trademarks

Major types are −

Service Mark

A service mark is the deliberate use of a symbol, name, sign, device, or term in commerce to identify and set one provider's services apart from others. Service marks are solely used to identify services and do not apply to tangible objects. In regular services, service markings are used.

  • Sponsorship

  • Hotel Service

  • Entertainment Service

  • Speed reading instruction

  • Management and investment

  • Housing development services

It is anticipated that a service mark would be essential to marketing and selling a good or service. The service mark of a product serves as a descriptor of that product and is also referred to as a trademark.

Collective Mark

A collective mark is used to designate the source of goods or services by employees and a collective group, by participants in a collaborative association, or by members of another group or organization. A collective mark designates a mark that is applied to a group of businesses that share comparable traits and their products and services. In order to divide the various goods or services, the company or group uses this mark on behalf of multiple individuals who are functioning in a group organization or legal body. There are two categories of collective marks for separating related goods and services.

  • When a marketer, trader, or individual uses a collective mark, it denotes their membership in the designated group or organization. By way of illustration, the Institute of Chartered Accountants uses the collective trademark CA.

  • To identify the origin or source of a product, collective trademarks and collective service marks are employed.

A collective trademark is one that an organization's group of individuals uses individually but that is registered collectively. An illustration would be the designation CA, which is awarded to members of the Institute of Chartered Accountants. The association group may utilize such a collective mark. The 1988 Trademark Act was amended to include this.

Certification Marks

A certificate mark verifies or confirms a matter by assuring that a certain act has been performed or a certain judicial requirement has been met. According to the Trademark Act of 1999, a certification mark is one that certifies specific characteristics of the goods or services that bear the mark.

A certification trade mark is one that the mark's owner certifies in terms of the source, body, mode of manufacture of the goods or performances of assistance, quality, accuracy, or other characteristics as being capable of identifying the goods or services in connection with which it is used in the manner of trade. In respect of those goods or services in the name of the owner of the certification trade mark, of such person, those products or services that are not so certified and registrable as such under this Act. Per the Trademark Act of 1999, certification marks are registered. The product must meet certification competency requirements in order to be registered.

Trade Dress

Trade dress refers to characteristics of a product's outward look, a building's design, or its packaging that serve to identify the product's source to consumers. In terms of intellectual property, it exists. Consumers are safeguarded by trade dress laws against products with imitative packaging or outward appearances.

Trademark Designation

  • Unregistered trademarks are denoted by the symbol TM. It serves to market or brand products.

  • SM (used for a service mark that is not registered). It's employed to market or brand services.

  • R (the letter R is encircled by a circle and is used for registered trademarks).

Uses of Trademarks

A trademark indicates the product's owner. A trademark may be used under any valid product agreement. Trademark piracy is the use of a trademark through unlicensed or unlawful means, such as manufacturing it for commercial purposes. If a trademark is violated, the owner of the registered trademark may file a lawsuit, whereas the only recourse for an unregistered trademark is passing off. Many nations, like the United States, Canada, and a number of others, accept trademark policies; therefore, they also grant the right to the product owner to take legal action to preserve their brand. The idea behind a trademark is that its owner has greater legal protection rights than those of its unregistered counterparts.

Registration of a Trademark

Anyone claiming to be the trademark's owner or who intends to use the trademark in the future may submit an application in writing to the relevant registrar in accordance with the established procedures. The name of the goods, mark, and services, the class of goods and services it belongs to, the applicant's name and address, and the amount of time the mark has been in use must all be included in the application. An organization, partnership, business, trust, state government, or the federal government are all examples of "person" in this context.

Conclusion

Intellectual property signifies that its object is a creation of the intellect or the mind. It can be given, traded, purchased, reserved, and produced by a productive and creative mind. All of this is possible, but there are related problems that need to be resolved. Because trademarks are significant components of intellectual property, they must be protected. This is because every provider of a good or service wants their mark to stand out from the competition, be enticing, and be simple to recognize from others. The goal of public policy is to maintain an intellectual property system that encourages innovation through protection measures while ensuring that this does not come at the expense of social interests.

Intellectual property is not a strange idea; in fact, it is a topic that is debated on a daily basis, whether it be in relation to a book, movie, plant variety, food item, cosmetic, electrical device, software, or anything else. It has evolved into a notion of pervasiveness in daily life. The 26th of April each year is observed as World Intellectual Property Day.

Frequently Asked Questions

Q1. What is a trademark?

Ans. The Trademark Act of 1999 defines a trademark as "a mark that can be represented graphically and that can be used to differentiate one person's goods or services from those of others, and may include the shape of the goods, their packaging, and a combination of colors."

Q2. What does "service" mean in the Trademark Act of 1999?

Ans. Service entails the provision of services related to the management of any commercial or industrial matter, including banking, communication, education, financing, insurance, chit funds, real estate, transport, storage, material treatment, processing, supply of electrical or other energy, boarding, lodging, entertainment, amusement, construction, repair, conveying of news or information, and service of any description that is made accessible to potential users.

Q3. What are "well-known trademarks"?

Ans. In accordance with S. 2(1)(g) of the 1999 Act, the phrase "well-known trade mark" has been established for the first time in regard to any goods or services. When a mark is used in relation to other goods or services, it is likely to be interpreted as denoting a relationship between the person using the mark in reference to the first mentioned goods or services by the significant portion of the public who uses those commodities or obtains these services.

Updated on: 09-Mar-2023

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