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The Life Path Of Trademark Till The Present

The life path of trademark till the present.

The term trademark is not new or suddenly popped up in the text books. Trademark and trademark law can be found in many law books, legal websites or in many text books described and discussed finely which goes pages after pages. It is a long string holding various issues. So,
  • What is trademark?
  • What is the origin of trademark?
  • Why trademark needed to be protected by law or had to take shelter under law?
To answer all these questions, the life of trademark is needed to be understood from the very beginning.

Trademark

Trademark is symbol, specific or unique marks attachedon goods that helps to distinguish or make the goods visible in the crowd. It throws spotlight on the originality to make it separate from the fake ones. It is mainly concerned with services and goods.

The origin of trademark

Trademark has come a long way. It has evolved and took many forms in various times. Many sources produce evidence in this view. Signs, emblems, drawings and images were used to hold the proof of any product's origin or its authenticity. Let's take view all over the world, in short, marking few places that how 'The Trademarks' which we know today, have a legal identity, existed in those days.

In past marks were used for specifying and verifying certain things by holding unique special feature which will distinguish one from another.

Greece: In Greece, the potters were known to give unique and specific marks on the vessels to indicate its place of origin and its owner. It began in the early 2nd century BC.

Roman: Romanians drew specific marks on cattle or livestock to claim its individual ownership.[i]

Egypt: Egyptians carved various symbols on structures based on religious and superstitious reasoning.

England: The sword manufacturers in England used identification marks on the weapons of its manufacturer.

China: The Chinese potters marked the name of Chinese emperor in power of each time with the location of the empire. The same was also found in Transylvania. Gold coins and seals also held the symbols of the manufacturer.[ii]

Europe: In medieval Europe emblems and symbols were added on military attire in the fifteenth century.

India: The history of India also holds the proof that picture or images of the king or ruler in power were carved on guilds or currency as symbol. The seals also held the marks of signature of the ruler in power.

These were few short examples around the world to get an idea of the existence of trademarks in around 5000 BC or around 19th century.

Slowly these marks became the pillar to prove the ownership of the goods. Thousands and thousands years ago, the importance of ownership was valued. It valued the owner, origin, place as well as the maker.

Why trademarks felt the need to be protected by Law?

Slowly with the growth of commerce, the growth of competition began. The aroma of originality began to fade with the growth of cruel and unfair competition. The real owners did not get the benefit of being any good's real owner.

The commercial competitors started to snatch the title of real owners and made themselves establish in the market. Many competitors started to supply and manufacture low grade or low quality goods under the name of reputed and well-known brand or name which puzzled the consumers and the customers with the quality of the products. As a result the real owner or manufacturer of the goods who used to hold a reputation for its high quality began to shatter due to an unhealthy competition or unfair competition by another commercial competitor.

These problems grew with time with the increased commercial competition, which need a quick solution to save the real owners of the goods as well as the customers from fraud and counterfeit.

The only weapon or one stop solution to handle this massive problem was to introduce and impose laws against it. But it was also not easy though. It also evolved many timesto give the best solution to this problem. So let's again have a quick view around the world marking few places to have an idea with evolution of trademark law in various phases of the world and how it gave effort to handle this common problem everywhere.

Greece:
The aim of Greek law is to mark and value the real origin of goods and services. [iii]
  • Article 123 of Law 4072/2012 [law no. 4072 passed in the year 2012] gave the definition of trademark and provision for protection of both goods and services.
  • Trademark registered in Greece will not be able to enjoy the protection outside its territory.
  • Trademarks are needed to be renewed after every ten years following their filling. If request of renewal is not filed within the specific time, then it can still be renewed within six months with the delay fine.
  • At present the Greek Trademark Law issue trademark rights under Law no.4072/2012 - which is currently in force and the EU Trademark Regulation (2017/2001).
  • The Greek trademark legal framework also includes:
    ® Law 213/1975, approving the Paris Convention for the Protection of Industrial Property;
    ® Law 2505/1997, approving the Nice Agreement on the Classification of Goods and Services;
    ® Law 2290/1995, approving the Agreement on Trade-Related Aspects of Intellectual Property Rights;
    ® Law 2783/2000, approving the Madrid Protocol on the International Registration of Marks.
  • Greek Mark was introduced under the Law 4072/2012 symbolising its nationality of goods and services.
     
But later in December 2014, 'sui generis' – a heart shaped flag device mark was also attached with 'Greek Mark'.
Italy:
  • Italy is a very old nation in the field of IP. It got its first official protection for IP under Patent Statute in 1474. Time to time the trademark law evolved many times. Later on 10th February, 2005 Italy was introduced with the Italian Code of Industrial Property by the legislative decree no. 30 (30/2005). It simplified and modernised the trademark law by collecting it under one single text.[iv]
  • In March 2010, The Industrial Property Code was implemented which brought simplified procedures of filing application, petitions, deeds and appeals.[v]
  • Italy got its trademark law protected under the Industrial Property Code
  • The trademark law in Italy aims to protect three types of trademarks – product, merchandise and service.
  • The nature oftrademark can be denominative, figurative, shapes (three dimensional), colour and movement.
  • The trademark gets protection for ten years from the date of filing and canbe renewed after every ten years.[vi]
  • Trademark symbols used in Italy are – ™ & ®.

Egypt:
  • Egypt aims to protect classes and services through its trademark law. Goods and services are clubbed and classified separately in various classes. So the 'class' headings covers individual set of goods differentiated under basic characteristics.
  • The first ever trademark law was passed in Egypt was Law 57/1931, and with the modification of IP rights as well as influenced by many international treaties, Egypt has welcomed a new IP law, i.e., Law 82/2002.
  • The trademark must hold 'Distinguishable feature' to get successfully registered. 'Descriptive feature' will lead to rejection of the registration.
  • Protection of trademark goes for ten years from the day of filing and can be renewed after the said period.[vii]
England:
The trademark law in England has evolved a quite few times,
® Starting from The Merchandise Marks Act (1862) which indicated the imitation of other's trademark is a criminal offence.
® Then came The Trade Marks Registration Act (1875) allowing the formal registration of trademarks.
® The Patents and Trademarks Act (1883) which is a revised version of trademarks law. It reduced application cost and; 'fancy words' and 'brands' which are new to market will only get registered.
® It again went under various modifications in the following years 1888 – 1905 – 1919 – 1938 respectively. The trademark law passed in 1938 remained in force till The Trademarks Act (1994) came into force.[viii]

The Trademarks Act, 1994 gives protection only to a 'capable sign' with 'distinguishing feature'. The trademark registration will valid for ten years from the date of application and can be renewed after the said period.[ix]

The symbol registered trademark is: '®'.

China:
  • The trademark law in Republic of China was adopted for the first time on 23rd August, 1982 in the 24th Session of The Standing Committee of the Fifth National People's Congress. Later it got amended and adopted on 22nd February, 1993 in the 30th Session of the Standing Committee of the Seventh National People's Congress. It again got amendedand adopted on 27th October, 2001 by the Ninth National People's Congress at the 24th Session of the Standing Committee.

    And then it got amended again and adopted on 30th August, 2013 by the Twelfth National People's Congress at the 4th Session of the Standing Committee. The next amendment took place within a short period, i.e., on 1st May, 2014 which enhanced the IP system more in the country by exercising fair competition and prohibiting trademark hijacking. [x]
  • The last amendment of trademark law was in play until the recent amendment on 1st November, 2019 got adopted by the Republic of China. This amendment strengthened the provisions to tackle the bad-faith trademark applications for registration and also intensified the punishment for trademark infringement.[xi]
  • The sign to get successfully registered in Republic of China must hold or fulfil four features – 'legal', 'functional', 'distinctive' and 'available'.
  • The validity period of registered trademark is ten years. Renewal can be made after the said period.
  • The registered trademark symbol is – ®and ?.[xii]

Europe:
  • The origin of the concept of trademark in Europe was found in the draft of Convention on European Trademark Law in 1964
  • European trademark law was first introduced by Community Trademark System in 1996. Community trademark is atrademark which has been registered or is pending to get registered in European Union.[xiii]
  • .Trademark symbol in Europe is – EU TMs.
  • Validity is ten years.[xiv]

India:
  • The hint of trademark law was traced back in pre-independent India. The English Act of 1875 gave protection to the trademarks in England and the same Bill was suggested in Indiathat time. In 1879, the Central Government circulated the said Bill for public opinion and in a short period it got a massive opposition from each and every one. After this no further discussion and proceeding was made regarding that trademark Bill.
  • The need for appropriate trademark law was felt which gave birth to The Trademark Act in 1940. But there were certain gaps in the Act which gave rise to various confusions and disputes which was later sorted by The Trade and Merchandise Marks Act in 1958. This gave introduction to the need of registration of trademarks which are already in use and unregistered, as well as the new upcoming.[xv]
  • The reformation of trademark law continued and The Trademarks Act, 1999appeared and came into force from 15th September, 2003. This Act is governed by The Trademark Rules, 2002. Some major changes came through this reformation, like:
    ® The period of protection of registered trademark was stretched from seven years to ten years.
    ® Widened the scope of trademark in India.
    ® Application for 'collective marks' can be filed for registration.
    ® Steps for registration of trademarks have been simplified and made convenient.
    ® Clear provisions to prevent any third party to use the registered trademarks.
    · The mark applied for registration must hold certain character to get successfully registered as trademark, like –
    ® It must be distinctive,
    ® It should be legal, and
    ® Enable traders to identify with clarity.[xvi]
  • The trademarks applied for registration will hold the mark ™ on the goods and the mark SM for services until it gets successfully registered and the registered trademark will hold the mark ® on the goods or services (whichever got registered). Many goods are found that hold both these marks – ™ and ® – those are the goods that was applied for registration and before getting successfully registered was launched in market which later was approved and got registered. These goods can hold both these marks together. The only – ® – holders goods and services are launched only after getting successfully registered.

So these were little ideas regarding trademark laws prevailing in certain phases of the world. The list is very long and immensely descriptive. There are many developed and developing countries who adopted and accepted certain trademark laws and still many countries are taking appropriate and official attempts to adopt new trademark laws or to amend to its every possible extent to meet the needs.

All these trademark laws are limited only in individual's territory. The problem does not get over here. The commercial trades are not limited within their own territories. These trades had taken long flight crossing the globe. So, how the trademark will get protection in international level?

The nature of human beings is very unique. Sitting idle, with problems in hand is not human's cup of tea. Even an ant does not stop to find new ways when its road is blocked. The protection of trademark in international level was also discussed and was tried to solve many times.

Intellectual property faced lack of security in international levels. To tackle this, conventions and treaties played major roles. In 1883, Paris Convention for protection of industrial property was the first step in intellectual property protection. Still it had some missed and overlooked points which were later filled by the Berne Convention in 1886. Then an international bureau was established by the Paris Convention and Berne Convention which came to be known as United International Bureaux for the Protection of Intellectual Property (BIRPI). It was set to administer both the conventions.[xvii]

Later in 1970, BIRP transformed to WIPO (World Intellectual Property Organisation). It promoted the protection of intellectual property across the world making and maintaining cooperation among the countries and international organisations. Then in 1974, WIPO became one of the specialised agencies of UN.[xviii]

The growth in international trade felt the need of more adequate and effective protection regarding intellectual property rights. It led to the international legal agreement – agreement on Trade Related Aspects of Intellectual Property Rights(TRIPS) among the member Nations of WTO. Article 7 of TRIPS says that protection and enforcement of intellectual property rights should contribute the promotion of technological innovations. Article 15 – 21 of Section 2 in TRIPS discusses about the termTrade Mark.

While all these conventions were going on – a new agreement was playing important role in international level which is The Madrid Agreement. The agreement was concluded in 1891 and the protocol relating to the agreement was concluded in 1989. Madrid Agreement and Madrid Protocol aimed the international registration of marks. It made convenient for the contracting parties to internationally register their marks and get protected by filing asingle application. The contracting parties will not have to file applications separately to the nations. The internationally registered trademark can also be renewed after ten years with only a single application by this Madrid system. The Madrid system is also open for the state parties to the Paris Convention.[xix]

After all these discussions, it can be held that the life path of trademarks till the present was not a smooth one and it's still in the process of moulding by our legal experts to meet the new upcoming needs. It has evolved many times but every time it proved to be the better version. Who knew that one day these simple andordinary signs, emblems, symbols, images and drawings will have to take shelter under law? Slowly nations after nations got alerted and adopted appropriate legal steps.

All the points discussed above are in very concise form, just to get a bird's eye view on the life of trademarks. There are many other nations who have taken appropriate steps in their trademark protection. The list is very long and descriptive. It can be said that the journey of trademarks is quite a successful one but a new day with a new problem but another day there will a new solution to it too.

End-Notes:
  1. Dennmeyer&Associates, The Evolution of Trademarks – From Ancient Egypt To Modern Times, DennemeyerIP Blog, (December 6,2019), https://blog-dennemeyer-com.cdn.ampproject.org
  2. History of Trademarks: Everything You Need To Know, upcounsel, https://www.upcounsel.com/history of trademarks
  3. FotiniKardiopoulis, Miranda Theodoridou, DimitraNassimpian(law firm Dr.Helen G. Papaconstantinou and Partners), Trademarks – The Official Guide To Greek Law, http://www.greeklawdigest.gr/topics/industrial-a-intellectual-proprty-rights/item/65-trademark
  4. BungnionSpALaw Firm, Trademark Procedures and Strategies: Italy, World Trademark Review,(March 29, 2017), https://www.worldtrademarkreview.com
  5. LES Italy, English version of the Italian Code of Industrial Property, http://www.les-italy.org/en/publications
  6. Glp, Trademark in Italy, https://www.glp.eu/en/resources/focus/trademarks/trademark-italy
  7. Al Tamimi&Company in association with Nour& Partners, procedures and strategies for anti-counterfeiting:Egypt, World Trademark Review, (May 24,2018), https://www.worldtrademarkreview.com/anti-counterfeiting
  8. United kingdom Trade Mark Law, Wikipedia, https://en.m.wikipedia.org/wiki/United_Kingdom_trade_mark_law
  9. Selachii Law Firm, a guide to UK Trademark Law, Selachii, https://www.selachii.com/a-guide-to-uk-trademark-law.html
  10. CCIPT Patent And Trademark Law Office, Trademark Registration, IPR PROTECTION IN CHINA, https://www.ccpit-patent.com.cn/node/1103
  11. Zoey Zhang, China's New Trademark Law In Effect From November 1, China Briefing,(November 19, 2019), https://www.china-breifing.com/news/chinas-new-trademark-law-effect-november-1-2019
  12. Trademarks[FAQs], CHINA IPR SME HELPDESK, https://www.china-iprhelpdesk.eu/content/trademarksfaqs
  13. European Union trade mark, Wikipedia, https://en.m.wikipedia.org/wiki/European_Union_trade_mark
  14. German Patent And Trade Mark Office, Information On The Amendment Of The European Union Trade Mark Directive, https://www.dpma.de
  15. Satish Sharma, Trademark In India: in a nutshell, vakilno1, (may 16,2018), https://www-vakilno1-com.cdn.ampproject.org/v/s/www.vakilno1.com/legal-news
  16. Dr. G.B. Reddy, Intellectual Property Rights And Law (Gogia Law Agency, 12th edn.,2019)
  17. Summary of Madrid agreement concerning the international registration of marks (1891) and the protocol relating to that agreement(1989), WIPO, https://www.wipo.int/treaties/en/ registration/Madrid/summary_madrid_marks.html
  18. Editors of encyclopaedia Britannica, world intellectual property organisation, Britannica, https://www.britannica.com/topic/world-intellectual-property-organisation
  19. Ibid

    Award Winning Article Is Written By: Ms.Suchandrima Maity
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