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Trademark A Legal Issue

Trademark A Legal Issue

Trademark is a distinct symbol, logo, word, or multiple words that are legally registered or established through their use as a representation for their particular brand or product. It basically protects brands names and logos been used on goods and services. Trademark is one of the branch of intellectual property rights which is already been protected by the virtue of law. Trademarks are unlike patents, which tries to protect the original work of author.

Registration Of Trademark

The registration of trademark must adhere to the provision of section 18 of Trademark act, 1999, which explicitly provides the procedure established for a registration of particular trademark, businessmen are allowed to file a trademark application where the business is been established or in other case.

The holder of the business can file an application through an agent or attorney. After the application, a particular trademark is determined on the basis of their eligibility and availability of a particular trademark, then it is reviewed by the trademark officer if the application filed is complete after completion of all the formalities the trademark officer allots the application a number, after the trademark is registered, the particular number becomes the registration number.

In accordance with the objection raised on application filed, if the examiner raises an objection the status of the application will show “objected”. Usually, according to the virtue of law the objection can be raised under sec 9 and sec 11 of the act.

Section 9 of the said act gives absolute grounds for raising an objection. Section 9 rejects any mark that is:

  1. Descriptive
  2. Generic
  3. Deceptive about the nature of the goods or services,
  4. Deceptive about the quality of the goods or services.

Section 11 of the said act also provides relative grounds for refusal. If the examiner objects under this section it will be mostly due the marks have certain similarities with an already registered trademark. Under section 11 applicant has two option either to prove that his mark is distinctively different from the conflicting mark and can definitely by distinguished as two separate marks or must get no objection affidavit from the owner of the conflicting registered work.

After this procedure, examiner issues an examination report within a period of one month which the applicant is obligated to reply to the particular examination report within one month and is the application is rejected, the applicant can appeal at the intellectual property appellate board within 3 months of issue of rejection order from the registrar. Moreover, if the application is accepted with any objection raised by the registrar after examining the report issued by the examiner then the mark has to be published in the official gazette, as per section 20 i.e. advertisement of application.

Infringement Of Trademark

The legislation tries to protect the trademarks in India. The trademarks Act, 1999 explicitly lays down the rules which deals with registration, infringement and protection regarding a particular registered trademark. In India, the organization that deals with the protection of trademarks are the Indian Patent Office administered by the controller general of Patents, designs and trademark.

There are two types of infringement under the act:
  1. Direct infringement:

    The definition of direct infringement is defined under section 29 of the act. The few facet has to be met for direct infringement of a trademark.
    The usage of trademark by an unauthorized person, when a breach occurs when the mark is used by a person who is not allowed or who is not authorized by the holder of the registered trademark.

    The act is only extended to trademarks which are registered with the trademark registry of India, the cases of breach of an unregistered mark, the common law of passing off is used to settle a particular dispute.
     
  2. Indirect infringement:

    There is no provision which provides the meaning of indirect infringement. The cases related to indirect infringement is adjudicated in accordance with the universal law principles.

Particularly in India, the infringement of a trademark irrespective if it direct or indirect it is constituted as a cognizable offence it clearly attracts criminal charges along with civil charges.

The remedies awarded by the court are following:

  1. Temporary injunction
  2. Permanent injunction
  3. Damages

In case of a criminal proceedings, the court may grant following punishment:

  1. Imprisonment for a period which cannot be less than 6 months and can be extended till 3 year, upon the discretion of the court.
  2. A fine of not less than Rs 50,000 that may be extended to Rs 2 lakh

Classification Of Trademark

Trademark is classified into two:

  1. Classes for goods
  2. Classes for services
These classifications are popularly known as Nice Classification. There are 45 classes in the nice classification out of which classes from 1 to 34 are categorized for goods or products and classes from 35 to 45 categorizes services. As it is important to ascertain the exact nature of goods or services for which trademark is used and filing application in a wrong class would result in the trademark owner losing their to enforce their trademark right and it will be constituted as an infringement.

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