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Suggestion For Amendments In Trademarks Law

It has been said the we are having ancient law with medieval law enforcement agencies to tackle modern offences. Can we succeed in handling the modern cyber crimes, that is the question? This observation also appears to be true if look at our law of Land in India.

We are having Indian Penal Code 1860, Indian Evidence Act Act 1972, Civil Procedure Code 1908 to tackle modern days offences. Though Indian Government has enacted Trademarks Act 1999, Copyright Act 1957, Design Act 2000, Patent Act 1970 for handling cyber crimes, technology based crimes, still there are lots of amendments required to be done. This article deals with few of the suggestions, which are required to be carried out to deal with problems faced in Modern Days Counterfeiting.

The right holder has to face problem while dealing with counterfeit products. There is always dilemma in ascertaining the counterfeiting , as term counterfeiting has not been defined under the trademark marks act. Because of this lacunae , the counterfeiters are able take advantage of different interpretations given differently by different courts to the term counterfeiting.

Though there has been amendment in Notification No.28-2017 Dated 22.02.2017 Central Tax (Rate) dated 28.06.2017, issued by Government of India, Ministry of Finance, (Department of Revenue), where by a party can seek exemption in GST, after disclaiming right in Brand, but there has not been any corresponding amendment in Trade mark law. Because of this a party can get exemption from government in taxes, still can enforce their right in trademarks act. This anomaly has to be eradicated.

There has been amendment with respect to declaration of a well known trade mark, but what would be having advantages of that, it is missing in Trade mark law. Section 135 of trade marks Act provides the registered proprietor, the right of remedy , either damages or rendition of account. While in Copyright Act , both remedy can be availed by Copyright holder. Similar right should be granted in trademark act also.

Though goods have been defined in the trade marks act, however term similar goods, allied and cognate goods have not been defined. Lots of confusion are always there has been inconsistent judgements by various courts while interpreting the term same, similar , allied or cognate goods. In order to avoid confusion, term same goods, similar goods, allied and cognate goods should be defined in the trademarks act.

World IP Law is changing and is getting broader and broader in order to encompass smell, sound etc. as a trademark. In order to keep at pace with changing IP World scenario, the trademark law should be amended to incorporate sound trademark, smell trademark, ambience trademark also.

There should be provisions for carrying out amendment in registered trademark. In many cases, where parties settle the matter and agree to change their registered trademark, however in absence of any such provision for amendment of registered trademark, lots of problems are faced by the registered proprietor in resolving the inter se disputes on registered trademark.

Term goods will and reputation is again a problem which has not been defined in the trademarks act. This is the area, where definite explanation is required to be given. Trademark Act should be amended to incorporate unregistered user including authorized and permitted user also who can also initiate civil suit proceeding. Penalty for repeated offences committed under trade mark act should be enhanced up to 4 years to give teeth to trademarks act 1999. This step would create some deterring effect on the counterfeiters.

There might be possibilities of various such suggestion to equip our law to keep at pace with the modern offences like cyber crimes, counterfeiting. However in opinion , the afore mentioned amendment are necessary and the call of time. Government of India should keep an eye to these suggestions.

Written By: Ajay Amitabh Suman

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