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Trademark

Trademark defined under section 2 (zb) of the Trade Marks Act, 1999 as, "trade mark means  a mark capable of being represented graphically and which is capable of distinguishing the  goods or services of one person from those of others and may include shape of goods, their  packaging and combination of colours.

Trademark is a unique symbols or words used to represent a business or its product. A  trademark distinctive symbols that identifies particular product of a trader to the general public.  The symbols consist of a device, words or a combination of these. Trademark is defined in the  Trademark act 1999 it says that the main purpose of trademark law is to prevent unfair  competition by applying a test of consumer confusion and providing right and remedies to the  owner of the trademark.

In simple words trademark is a symbols, word or words legally registered or established by use  of representing a company or product. It's a mark that distinguish the goods and service of one  enterprise from those of other enterprise. The trademark is protected by Intellectual Property  Right.

Once a trademark has been granted by registrar the owner receives three benefits

  1. A notice of claim to any other business thinking of using the same symbols or words
  2. A legal presumption of ownership
  3. The exclusive right to use the claimed trademark

Once registered the same symbols or words cannot be used any other trader or any other  organization as long as it remains. A trademark exclusively used by its owner.

The term of trademark is 10 years it can be renewed on payment of additional fee. However,  the right to remain on the register may be lost if the trademark is not used or is misused. If  anyone use registered trademark without the permission of owner or users a mark that is likely  to be confused with a registered trademark can sue an injunction and damages or an account  profit. Unregistered trademark is protected by passing off. If a trademark has been registered,  then it is much easier for the trademark owner to enforce these rights through an infringement  action.

Trade mark is design to fulfil the objective of consumer protection. At the national or regional  level, the trademark protection can be obtaining through registration by filling an application  for registration with the national or regional trademark office and pay the fees. Ine case of  international level the protection for the trademark there has been two-way i.e., either trader  can file a trademark application with the trademark office of each country in which may seek  protection or the other way is to use WIPO’s Madrid system protection.

By comparing copyright law generally, it Procept original literary, artistic and other creative  work. In trademark continued active use and re-registration can be done. But in copyright  usually the term is lasts for the duration of the authors lifespan. In patent law it seeks to protect new and useful invention and the trademark seek to protect the indication of the product or  service.

The term licences in trademark means the trademark owner grand a permission to another  person (Third person) to commercially use trademark legally. A trademark licence should  include appropriate provision dealing with control, and equality.

Trademark infringement means it is the unauthorized use of a trademark or service mark on or  in connection with the goods/service that make confusion, deception or mistake about the  goods/service in the public. Trademark owner who believes that its marks is being infringed  may file a civil case against the person who make infringement.

Under trademark act 1999 section 103 and 104 provides for imprisonment for a term not less  than six months which may extend up to three years and fine not less than fifty thousand which  may extend up to two lakhs rupees in case of false application of trademark and selling of goods  to which false trademark has been applied.

There are different specific types of trademarks they are as follow:

  • Service mark
  • Trade name
  • Collective mark
  • Trade dress
  • Certificate mark
  • Motion mark
  • Family mark
  • Position mark
  • Logotype
  • Sound mark
  • House mark

And there is different general type of trademark they are as follow:

  • :Generic mark
  • Suggestive mark
  • Descriptive mark
  • Arbitrary mark
  • Fanciful mark

One of the important case law The Coca Cola Company v. Bisleri International Pvt. Ltd:[1]

The defendant, Bisleri by a master agreement, had sold and assigned the trademark MAAZA including formulation rights, know-how, intellectual property rights and goodwill for India with respect to a mango fruit drink known as MAAZA to Coca Cola.

In 2008, the defendant company filed for registration of the mark MAAZA in Turkey and started  exporting fruit drink under the name MAAZA. The plaintiff, Coca Cola claimed permanent  injunction and damages for infringement of trademark and passing off.

After hearing the arguments of both sides, the court granted an injunction against the defendant (bisleri) from using the trademark MAZZA in India as well as for export, which was  infringement of trademark.

End-Notes:
  1. https://lawcutor.com/intellectual-property-laws/case-study-the-coca-cola-co-v-bisleri-international-pvt-ltd/
Written by: Nirmal S Mohan

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