Paragraphs on Law Regarding Trade Marks in India!
A trademark is a word, figure, numeral, design, or a combination of any of these, used to identify and distinguish the goods or services of a business from those marketed by others.
In other words, it establishes the relationship between the goods and the manufacturer. A trademark can relate to both products and services.
Normally, the goods produced by a manufacturer establish a reputation over a number of years and are readily identifiable by the trademark they possess. Thus, the business owner’s reputation is at stake with the goods carrying the mark. On this basis, the business owner can claim exclusive rights to use that mark.
Trademarks in India are protected both under statutory law and common law. The Trade and Merchandise Marks Act, 1940, was the first set of laws governing trademarks in India. This was replaced later by the Trade and Merchandising Marks Act, 1958.
The Trade Marks Act, 1999, which replaced the TM Act, 1958, came into effect on September 15, 2003, and is in compliance with the TRIPS obligations. The current TM Act allows for the registration of service marks and three-dimensional marks as well. India follows the Nice Agreement concerning the international classification of goods and services for the purposes of the registration of marks, which is incorporated in the Schedule to the Rules under the TM Act.
A Trade Marks Registry had been established for the purposes of the TM Act, 1940, which has continued to function under the TM Act, 1958, and the TM Act, 1999. The Trade Marks Registry is under the charge of the Registrar of Trade Marks. The head office of the Trade Marks Registry is in Mumbai and its branches are at Delhi, Kolkata, Chennai, and Ahmedabad. The exclusive territorial jurisdiction of each office has also been allocated.
Any person claiming to be the proprietor of a trademark proposed to be used or currently in use by that person can file an application for registration. The application may be made in the name of the individual, partner of a firm, a company, any government department, a trust, or even in the name of joint applicants.
An application can also be filed on behalf of a company that is about to be incorporated. International entities can also apply in India and will be treated at par with domestic applicants.
Prior use of the trademark is not required for filing an application for its registration. An application for registration may be made even if the applicant intends to use the trademark sometime in the future.
However, in the case of descriptive marks, the Trade Marks Registry can require proof of use of the mark before registration is granted.
Some interesting trademarks are given below:
1. Numbers can be trademarks like in the case of 501 tea and 555 cigarettes.
2. Symbols can be trademarks like those of Mercedes Benz or Apple computers.
3. Letters can be trademarks like in 3M, IBM, NIIT.
4. Orange cell-phone service has successfully managed to include the colour orange as its trademark. There are many other cases of the colour being part of the trademark.
5. Sound like MGM’s ‘roar of the lion’ can also be a trademark.
6. Sumitomo tyres have registered a rose-like smell as its trademark.