Trademark is governed by many laws, international agreements, covenants, treaties like Madrid Protocol, UDRP, WIPO etc. Trademark laws and rules may differ country to country which make the registration process more complex, lengthy and costly that lead to limited protection to a trademark. However, the international treaties, agreements like Madrid Protocol, Paris Convention made the registration process simpler by making uniform structure and rules for the same. While businesses can apply for registration separately in any country to seek trademark protection. Many international rules and regulations govern the Intellectual Property Rights which are as follows: –
INTERNATIONAL TREATIES AND AGREEMENTS
One of international treaty and agreement is Madrid Protocol which is one of harmonized system of registering the trademark in multiple different countries. After registering the trademark in home country by trademark proprietor, he can apply for registration in other multiple member countries as well. The other famous one is Uniform Domain Name Dispute Resolution Policy (UDRP) which is a mechanism to addresses the disputes related to trademark infringement by person other than trademark proprietor and authorized user, the third famous one is World Intellectual Property Organization (WIPO) which is an UN agency that plays a vital role in promoting and protecting the Intellectual Property rights globally. It works in formulating the policies related to Intellectual Property Rights and provides the help to countries to build their IP systems. Other than these three, there are many other international treaties and agreements which govern and protect the Intellectual Property Laws.
REGIONAL TRADEMARK LAWS
There are some regional trademark laws which prevails or works in separate countries independently like European Union (EU) has EUIPO (European Union Intellectual Property Organization) which offers a centralized trademark system, allowing businesses to register and protect their trademarks across EU 27 member states through a single, unified process, similarly United State has USPTO (United States Patent and Trademark Office) which controls and manages the trademark registrations, trademark licensing, trademark infringement etc. and the intellectual property laws are governed by the Lanham Act. India has Trademark Act, 1999 and Trademark Rules, 2017 which administers or controls and manages the trademark licensing, registration, infringement etc.
COMMON KEY ASPECTS OF BOTH INTERNATIONAL AND REGIONAL TRADEMARK LAW
There are some key aspects of international and regional trademark law like registration, licensing, passing off, infringement etc. which are explained as follows: –
1) Registration: Trademarks are registered to get the protection from infringement by any person other than the proprietor and any authorized user of trademark, however, to get the protection registration is not made compulsory if it is prior used to registered trademark in the concept of passing off. In India, section 18 of the trademark act, 1999 explains the process of the trademark registration.
2) Absolute Grounds for Refusal: Trademark registration can be refused on absolute grounds which are enshrined in section 9 of the trademark act, 1999 in India which includes distinctiveness, descriptive etc.
3) Relative Grounds for Refusal: Trademarks registration can be refused on the relative grounds which are given under Indian law “Trademark Act, 1999” under section 11 which includes similarity or identical with other marks.
4) Opposition: Trademark registration can be opposed by third party on any grounds like relative or absolutive, like In India, the trademark registration’s application can be opposed within the four months of the advertisement in the journal.
5) Enforcement: If the registered trademark is infringed by any person other than the any authorized user and registered proprietor, then the trademark owner can claim the damages, injunction or any other suitable remedy.
Therefore, these are the main key aspects of regional and international trademark law
RECENT CHANGES AND TRENDS IN INTERNATIONAL AND REGIONAL TRADEMARK LAW.
There are some recent changes and trends was seen in the national and international trademark law which are explained as follows: –
- Digital Goods and Virtual Services: The European Union Intellectual Property Office has made some important guidelines to classify the virtual goods and NFTs, which mostly requires the blatant description of their respective good.
- Non-Traditional Trademarks: Many countries started recognizing non-traditional trademarks which basically includes sound marks, motion marks, and holograms, etc. like Japan and Brazil did, but this would be only adopted when they will meet the distinctive threshold or when they will be distinct from others or basically be unique
- Global Trade mark Harmonization: Global trade mark harmonization is increasing by the countries joined together to bring the uniformity in all the process like registration, licensing, trade mark infringement etc. which helps in reducing cost, making easier to get protection of trade mark in many countries by single application, and saves the time. Hence, the increase in practice of global trade mark harmonization in unified approach is significantly proven very helpful.
ENFORCEMENT OF TRADEMARK RIGHTS IN DIFFERENT COUNTRIES
The enforcement of trademark law varies from country to country which creates challenges, makes the Enforcement process of getting the trademark rights and protection against the infringement very complex, and limit the protection of trademark within limited area or jurisdiction. For example like In some countries like India, if someone infringe the registered trademark then it is supposed to be trade mark owner responsible to enforce their rights by filing suits against the person who infringes the registered trademark, while in some other countries like China, government has given role in taking actions in case of infringement of registered trademark against the person who infringed and the government itself plays an important role in enforcing the trade mark rights. The Chinese government has made some special type of courts to resolve particularly the disputes related to intellectual property including the trademark and has increased the penalties if someone infringes the registered trade mark. Another important challenge that business felt is related to enforcement of their trade mark rights in online market places. These online market places like Amazon, Alibaba, Flipkart etc. have made very easy for the trade mark infringers to sell their goods with the impugned trade mark to consumers nationally as well as globally. Trademark owners must be vigilant while enforcing their respective trade mark in the online market places and must file complaint against infringers in the case of infringement of their trade mark. Some online marketplaces have established their own systems for handling trademark disputes, but these systems are not always effective.
CONCLUSION
It is concluded that the trademark process of registration, licensing, infringement etc. differs from country to country except when countries join together to make it simplify and uniform. Country like U.S follows first to use system which gives protection on the basis on first in commercial use, means trademark owner can get protection before registration also if he uses the mark commercially before. While countries like EU and China follows First to File system which means the trade mark owner get the protection of their mark on the basis of registration before made by anyone else. These countries don’t give importance to prior use of mark commercially. While some countries like India follows hybrid or mix system which means they follows both first to use system and first to file system. It basically means that if anyone is able to prove that he has been using the mark for a long time, then he can get ownership rights or can become the trade mark owner even if any other party has registered the same mark before.
KEYWORDS
- Trademark Infringement
- Trademark Registration
- Trademark Opposition
- Trademark Enforcement
REFRENCES
- International Trademark Registration – Procedure and Benefits, https://www.maheshwariandco.com/blog/international-trademark-registration/ by Mayashree Acharya.
- What is Trademark, https://blog.ipleaders.in/what-is-a-trademark/ by Ishani Samapti.
- Navigating International Trademark Law – A Comprehensive Guide to Global Trend Protection Strategies, https://www.numberanalytics.com/blog/navigating-trademark-law-technology by Sarah Lee.
