An Introduction to Trademark Law

Trademark: what is?

The trademark or trade mark, symbolized as the TM and ®, is the distinctive sign or indication which is used for signifying some kind of goods or/and services and is distinctively used across the business organization or by an individual for identifying and uniquely classifying the source or their products and/or services among consumers and making a distinction of its products or services from the other entities. One of the part of the intellectual property law, trademark signifies to the name, word, phrase, logo, image, design, symbol or combination of any or all of these elements. The trademark grants rights to the owner which in turns may take or can commence legal proceedings in case of infringement of trademark. However registration is not compulsory in trademark. The owner of common law trademark can also file the suit but in case of the unregistered mark, the protection granted will only be confined only to that geographical area within which it has been used or in that area into which it is expected to be expand.

Informally the term 'trademark' is used for distinguishing those characteristics or attributes which helps in identifying any individual. When the word 'trademark' is used in context of services rather than products, it may called service mark. When the trademark is used for describing the product or service, instead of making a distinction from the third parties then it is popularly called generalized trademark. As any sign which is attributed of doing the essential required functions of the trademark may be headed under the term 'trademark'. It may include various non-conventional signs like shapes(three dimensional trademarks), smells, sounds, moving images, taste, color and even texture. The extent to which these non conventional trade marks are recognized or even protected varies from one jurisdiction to another.

Advantages of Trademarks

The trademark owner is conferred upon the 'exclusionary rights' which says that the owner enjoys the right of using the registered trademark and can indicate it by using the symbols- â,,¢ and ® in relation of those goods and services for which the owner has registered the trademark. At the time of any infringement, the owner can take upon the case in the court. Trademark provides the guarantee for the unchanged quality and helps in creating and advertising the products and services in public.

INTERNATIONAL TRADEMARKS LAW

Due to the increasing globalization of trading activities, it becomes necessary to integrate the trademark law and policy, nucleus of which must be constancy in its various activities. The following trademark laws have candidly enable the industrial market across the world to save their time and resources by allowing the centralized filing system and completion of various procedures related to it.
  • Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) :
Administered by the World Trade Organization (WTO), the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is the international agreement which laid down the minimum standards for different parts of the intellectual property (IP) regulation. In the year 1994, the said agreement was negotiated at the end of the Uruguay round of the general agreement on tariffs and trade (GATT). The TRIPS encompasses of the various requirements which laws in different countries are required to abide for along with the specification of the procedures, remedies and disputes. In the Article 15(1) of TRIPS, 'sign', which has been used in part or form of the 'trademark' in the trademark legislation of various jurisdiction in throughout the world.


  • The Madrid system for the international registration of marks :
The madrid system is seen as the pivotal international system for enabling the trademark registration in more than one jurisdiction. It offers the centrally administered system for achieving the trademark registrations in the jurisdiction of member nations by extending and facilitating the protection of the international registration obtained through the World Intellectual Property Organization. The international registration is said to be based on the application or registration which is acquired by the trademark applicant within its home jurisdiction. The foremost benefit derived from the madrid system is that it facilitates the trademark owner in obtaining trademark protection in multiple jurisdictions by filing the application only in 1 jurisdiction on the payment of one set of fees. This system allows the applicant to make amendments and complete registration process across all the jurisdictions by applying through the single administrative process. Moreover, it is easy to extend the international registration coverage to the other member jurisdictions at any given point of time.


  • Trademark Law Treaty :
The trademark law treaty aims to establish the system through which jurisdictions of member nations agree for standardizing the various procedural requirements of the registration process in connection to the trademark.


  • The Communal Trademark System :
It is the super national trademark system which is prevalent in the European union.

TRADEMARKS LAW IN INDIA

The Indian trademark law defines the trademark as the signature, device, word, invented word, letter, numeral, brand, name written in the particular style, the shape of goods other than those for which the mark is intended to be used, or any combination thereof or the combination of colors etc. Except in certain cases, the trademark may also signified by the name of living or dead person. The trademark helps in making an identification of the goods and services along with its origin. It helps the trademark holder to advertise its products or/and services and also creates a good image in the mind of its final consumer but the trademark chosen should be capable of making a distinction between the goods or services of different people. Furthermore, it should not be deceptively identical to the existing mark of the other person and should not be such that which is restricted in the act.

In India, any person who claims to be the trademark proprietor can apply for the trademark registration of the goods and services. For registration, the application can be filed in the Trademark Office, in whose jurisdiction the principal place of your business falls. If the principal office is not situated in India then the applicant can file the application in the trademark office in whose jurisdiction the lawyer appointed by the applicant is situated. In case it is the company which is yet to be formed then anyone can apply for the registration on the behalf of the company. It is prudent to make a proper search in the trademark office for ensuring that your registration may not be canceled due to the similarity of the proposed mark to the already existing one. In India, the registration term of the trademark is 10 years which can be renewed further for next 10 years by paying the renewal fees.

In India, only the trademark proprietor whose trademark has been registered can put the symbol ® into use. If any use the symbol without the registration of mark he/she will be held under illegal use of the trademark. If anyone is engage in selling or providing services by using the false trademark he/she will be entitle to the penalty of minimum 6 months which may extend to maximum of 3 years and with the fine of not less than Rs.50,000 and which can extend to Rs.2,00,000.

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