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Trademarks an Overview

Intellectual Property Rights (I.P.R) are the legal rights governing the use of creations of the human minds.

Intellectual Property refers to any original creation of the human intellect such as artistic, literary, technical, or scientific creation. Intellectual property rights (IPR) refers to the legal rights given to the inventor or creator to protect his invention or creation for a certain period of time.

The term “Intellectual Property” has been used for almost more than one hundred and fifty years, which refers to the general area of law that includes copyrights, patents, designs and Trademark and the related rights. The intellectual property law regulates the creation, use and exploitation of mental and creative labour.

Trademark:

A Trademark is a distinct symbol, logo, word, or multiple words that are legally registered or established through their use as representing a company or product brand. A Trademark protects brand names and logos used on goods and services. Trademarks are intellectual property rights that are protected by law. Trademarks are different from patents, which protect inventions, and copyrights, which protect an original work of authorship.

The primary purpose of a Trademark is to provide brand recognition to consumers. Trademarks assure the consumer that the company or products bearing the Trademark are of a known and reliable quality. Simply stated, Trademarks protect consumers from being misled. Accordingly, Trademarks ensure free competition by protecting the goodwill of the entity that owns the mark.

Trademark Registration AND ITS PROCESS
The object of Trademark law i.e. Trademark Act, 1999 is to provide for Registration; better protection of Trademarks for goods or services and the prevention of the use of fraudulent arks on the goods and services.

The Trademarks Act,1999 under Chapter III provides for procedure and duration of Registration (sec 18 to sec 26).

The Trademark Registration process is briefly explained below:

As per section 18 (1) of the Trademark Act, 1999, any person claiming to be the proprietor of a Trademark used or proposed to be used by him may apply in writing in prescribed manner for Registration. The application must contain the name of the mark, goods and services, class in which goods and services fall, name and address of the applicant, period of use of the mark.
Any Person means a Partnership firm, association of persons, a company, whether incorporated or not, a Trust, Central or State government.

Steps for Registration of Trademark:

  1. Search for the name, device, logo, and mark intended to be applied as Trademark.
  2. Apply for Registration of Trademark. 
  3. Examination of application by the registry. Examination report issued by the registry raising objections under different sections of the Trademark Act, 1999. 
  4. Replying to the official objections and if required, ask for hearing. Applicant needs to file evidence in support of the Trademark application.
  5. Advertisement of Trademark in official gazette/Trademark journal for the purpose of opposition filed by the public within 3 months from the date of publication. 
  6.  If no opposition is received, a certificate of Registration is issued in favour of applicant. The validity period of Registration certificate is for ten years and after that the same can be renewed subject to the payment of renewal fees.
     
  1. What is the remedy available to the third party under the act after registering the Trademark?

    • Section 57 of the Trade Marks Act, 1999 states that power to cancel or vary Registration and to rectify the register;
    • On application made in the prescribed manner to the Appellate Board or to the Registrar by any person aggrieved, the tribunal may make such order as it may think fit for cancelling or varying the Registration of a trade mark on the ground of any contravention, or failure to observe a condition entered on the register in relation thereto.
    Any aggrieved party may file a cancellation petition before the registrar of Trademarks or before the Intellectual Property Appellate Board (IPAB). After giving notice and the opportunity to be heard to both parties, the registrar or IPAB may cancel, vary, make or remove the Trademark. The application must be filed in the prescribed manner and should be accompanied by a statement of case, setting out the nature of the applicant's interest, the facts upon which the case is based, and the relief sought.
     
  2. What remedies are available against Trademark infringement?

    Trademark infringement is a violation of the exclusive rights attached to a registered Trademark without the authorisation of the Trademark owner. The owner of a Trademark may commence civil legal proceedings against a party which infringes its registered Trademark.

    Sections 29 and 30 of the Trade Marks Act, 1999 deal with the infringement action as a remedy against unlawful and unauthorised use of a registered Trademark.

    following remedies are available against Trademark Infringement:
    • Civil remedies:
      Civil remedies can be sought by filing suit for infringement before the competent court.

    The following forms of civil reliefs are available:
    • Interlocutory/temporary/ad interim injunction:
      Discretionary relief offered to the plaintiff that prohibits an action by a party to a lawsuit until disposal of the suit;
       
    • Permanent/perpetual injunction:
      a final order of a court that a person refrain from activities permanently or take actions in perpetuity;
       
    • Damages or account of profits:
      damages are granted to the plaintiff to compensate for the losses suffered on account of the defendant's acts. Account of profits is an equitable remedy which requires the defendant to hand over to the plaintiff the actual profits made due to the infringing activities; and
       
    • Delivery up and destruction:
      the handing over or destruction of the infringing goods by the defendant.
       
    Criminal remedies:
    The Trade Marks Act 1999 enumerates numerous offences in relation to falsifying and falsely applying a Trademark, making or possessing instruments for falsifying Trademarks, applying false trade descriptions and so on. The punishments for these offences vary, but the maximum punishment can be as severe as imprisonment for up to three (3) years, with or without a fine.
     
  3. Differences Between Passing Off and Infringement:

    The action for passing off is different from an infringement action.
    The action for infringement is a statutory remedy whereas the action for passing off is a common law remedy.

    In order to establish infringement with regard to a registered Trademark, it is necessary to establish that the infringing mark is identical or deceptively similar to the registered mark and no further proof is required. In the case of a passing off action, the marks are identical or deceptively similar alone is not sufficient. The use of the mark should be likely to deceive or cause confusion.

In case of passing off action it is necessary to prove that the use of the Trademark by the defendant is likely to cause injury or damage to the plaintiff's goodwill, whereas in an infringement suit, the use of the mark by the defendant need not cause any injury to the plaintiff.

 When a Trademark is registered, Registration is given only with regard to a particular category of goods so the protection is afforded only to those goods. In a passing off action, the defendant's goods need not be the same; it may be different.

Conclusion
Through this article we can very briefly understand; Trademarks ensure free competition by protecting the goodwill of the entity that owns the mark. In this article we have walked through different aspects of Trademarks in very brief manner which provides an overview about its Registration, What is the remedy available to the third party under the act after registering the Trademark , what if the remedy in case of Trademarks infringement and difference between passing off and infringement. Written By: Kavya N final year student B.B.A.,LL.B( Hons) at Karnataka State law Universitys law school.

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