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Trademark Law in India

A Trade Mark is a visual symbol in the form of a word , a device ,or a label • Importance of Trade mark • Registration of Trade mark • Trademark policy • Trademark protection
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What is a trade mark?

A Trade Mark is a visual symbol in the form of a word , a device ,or a label applied to articles of commerce with a view to indicate to the purchasing public that is a good manufactured or other wise dealt in by a particular person as distinguished from similar goods dealt or manufacture by other persons

Object of Trade Mark

IS to deal with the precise nature of the rights which a person can acquire in respect of a TM-The mode of acquisition of such rights -the method of transfer of those rights to others-the precise nature of infringement of such rights-and the remedies available in respect thereof.

Functions of a Trade Mark

1. It identifies the product of its origin  2. It guaranties its unchanged quality 3. It advertises the products & 4. It creates an image for products.

What is a good Trade Mark

  1. It should be easy to pronounce and remember if it is word mark
  2. In case of a device mark -should be capable of being described by a single word.
  3. It was be easy to spell correctly and write legibly
  4. It should not be descriptive
  5. It should be short
  6. It should appeal to the eye as well as the ear.
  7. It should not belong to the class of marks prohibited for registration
  8. It should satisfy the requirements of registration.

Tips on Trademarks Management

A trademark is much like that of a human being because the life of a trademark may be correlated to the life of a human being. Every human being is to be named immediately after birth in this earth and on the same line every product is to be identified with a trademark. Hence there is need to nurture trademarks like human beings.

Trademark is a major asset of any company. Hence 'trademarks management' in an enterprise comprises two aspects:
  1. Trademark Policy
  2. Trademark Protection

Trademark policy

is a marketing function. Normally the marketing personnel of an organization will take care of this trademark policy letter known as ' Brand Management

Trademark protection

is a legal function .In small enterprises one of the tasks of the legal department is to assure the protection of company's trademarks. In large enterprises there is need to create a specific department known as ' Trademarks department' which will look after the ' Trademarks Management

Since trademark protection is a legal function, the trade marks department best assure its role when it is integrated in the legal function of an organization.
The principal duty of the Trademarks Department is to protect and administer the trademark of the company i.e. by getting registration under the relevant laws of a particular country, the country of registration, the list and classes of goods and the services covered , renewals, action against the infringes and dishonest users and so on.

The trademarks department has an additional task in advising the marketing personnel in the choice of new trademarks, their protect ability and their availability, and also in the legal aspects of trademark policy.

The Trademarks Department may also be entrusted with the task to managing the licensing of trademarks, drafting license agreements and permitted user agreement for use of trademarks and also to look after other areas of Intellectual Property such as Patents, Designs, Copyrights and technical know how.
Functions of the trade marks department for proper trademarks department for proper trademark management.
  1. Advise the marketing department with regard to the choice of a new trademark.
  2. Legal clearance of a new trade mark by conducting searches in the Trademarks Registry and also in the market places with regard to the availability of identical or similar marks in respect of similar goods and services.
  3. Submit trademark applications and advise the company to go for registration in a country where the goods are to be exported or sold.
  4. Since there is globalization of industry and trade, it is better to seek International protection of the trademarks and other Intellectual Property.
  5. Advise the company for proper use of trademarks after obtaining registration in order to avoid the attack on the registered trademarks on the ground of non-use by business competitors.
  6. Initiate legal action against the infringes by filing civil suits or criminal complaint against the infringes and dishonest traders.
  7. To conduct search and raid the premises when the infringed or spurious goods are being manufactured or marketed with the help of local police personnel after.
  8. lodging criminal complaint.
  9. To maintain individual files for each and every trademark of the company for easy reference.
  10. It is better to computerize the Trademarks Department by creating a software for this kind of ' Trademarks Management '.

If the creation of trademark department is not economical one of trademark department is not economical one for any type of organization, then it is better to entrust this task to a Trademark Attorney who should be properly instructed to maintain all particulars and papers with regard to trademarks either on retainer or work-to-work basis.

Trademark Law In Music and Film Industry – A Critical Analysis With Special Focus On India and Us: A trademark means a mark which uniquely identifies the commercial origin of a product and service. Nowadays, trademarks have become money makers in the music and film business. The two main sectors – music and film are the emerging big markets globally which gives huge profits to the entertainment industry.

Why Descriptive Trademark have no legal Protection in India here is a list of judgments:

  1. The Sugar Free Case - Cadila Healthcare Ltd. V. Gujarat Cooperative Milk Marketing Federation Ltd. & Ors
  2. Low Absorb Case - Marico Limited V. Agro Tech Foods Limited
  3. Rehydrate Case - Stokely Van Camp, Inc. V. Plaintiffs Vs Heinz India Private Limited
  4. Micronix Case - Micronix India Vs Mr. J.R. Kapoor

Registering Trademark Under new Trademark Rules, 2017: A trademark is a distinctive mark in the form of the word, symbol, name, sound, numerals, wrapper, packaging labels, tagline, logo or a combination of these used to identify a good or service and to distinguish it from other similar goods or services originating from different businesses.

Certification of Trademark

Sections 69 to  78 of the Trademark act deals with Certification of Trademark
Section 2 defines Certification Trade Mark as under-
It is mark having the capacity to distinguish the goods or services which are used in the course of trade.
It states the features given by the proprietor about-
  1. Origin
  2. Material
  3. Mode Of Manufacture
  4. Mode Of Performance
  5. Quality
  6. Accuracy
  7. And Other Feature

These all are such feature which are different from the other goods or services which are not certified or register able under chapter 9.

The certification Trade Marks is peculiar as it shows that the goods covered thereby are certified by the competent person about its contents this mark can be used even in additions to the users own trade mark. These re given special treatment; the provisions can be briefly stated as follow:

  1. Some provisions of the Act do not apply to the CTM as given below-
    (a) Section 9(1)(a) and (c)
    (b) Section 18, 19, 20
    (c) some good provisions of Section s6 and
    (d) Chapter 12 except Section 160
  2. The proprietor of the CTM shall not deal himself in those goods.
  3. The person who so proposes shall choose an application duly accompanying the draft of regulation. The Tribunal shall consider that the mark should comprise an indication about CTM
  4. The Registrar shall have to consider the following points viz-
    (a) competency of the applicant to certify the goods
    (b) satisfactory nature of the draft regulation
    (c) advantage to the public of course the Registrar is empowered to accept the application or reject the application or allow the application imposing conditions or limitations.
  5. On acceptance of the application there shall be an advertisement in the prescribed manner inviting objections.
  6. In the trade mark registry there shall be incorporated the regulation governing the use of CTM. These may even be advertised at the discretion of the Registrar inviting opposing and the decision shall be after hearing.
  7. If any body commits an infringement of the regulations in any way shall give arise to claim compensation.
  8. However certain acts described below are not to be considered as causing infringement-
    (a) The act is in relation to those places or circumstances where registration did not extend.
    (b) The proprietor has expressly or impliedly consented to the use
    (c) The user forms an assessory without infringing the rights It is to be noted if the CTM is one of many other register marks which are sufficiently identical or resemblance then the use shall not be an infringement.
  9. Cancellation or varying the registration, any one aggrieved may choose an application to the registrar to expunge the entry or regulation of CTM which can be either of the following ground-
    (a) the proprietor has lost the competency to certify
    (b) proprietor failed to observe regulation
    (c) the registration is not necessary for public advantage
    (d) variation is needed in the regulation in the interest of the public
  10. Lastly, needless to add the person who gets CTM registered shall get exclusive right to use CTM subject to the condition and shall have the right against infringement.

Trademark law in IndiaTrademark Laws Discussion Forum
  • How do I contest someone else using a trademark similar to mine?
  • What are the benefits & protection of trademark registration?
  • Do I have to be an Indian citizen to obtain a trademark registration?
  • What are common safeguards a trademark owner is supposed to take?
  • Kolkata Haldiram Bhujiawala lost Its Trademark
  • Trademark Registration Now Becomes Global With Madrid Protocol
  • what is the Duration of Trademark Registration
  • What does DEVICE mean in Trademark
  • Class 44 of Trademark is for Medical services
  • Class 45 of Trademark is for legal services
  • What does certification mark mean
  • Importance of trademark
  • how to select a strong trademark from legal point of view

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Trademark Laws

Trademark Infringement and Passing off in the Indian Pharmaceutical Industry
The concept of ‘Trademark’ is not new in the Indian scenario. In this 21st century of commercial, technical and scientific advancement, the importance of ‘trademark’ to a business house or the manufacturer of goods to which such marks are applied cannot be undermined.

Registration of shape of goods as Design
Design means only the features of shape, configuration, pattern, ornament or composition of lines or colors applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any trade mark as defined in clause (v) of sub-section (1) of section 2 of the Trade and Merchandise Marks Act, 1958 or the property mark as defined in section 479 of the Indian Penal Code or any artistic work as defined in clause (c) of section 2 of the Copyright Act, 1957.

Advertising and Trademark Infringement:
The Government announced a new industrial policy on the 24th July, 1991 which envisaged liberalization. With this liberalization and globalization of the Indian economy, the sphere of trade, industry and commerce has increased to a great extent.

Trade Secrets & Competition Act: A bird’s eye view:
A trade secret has both monopoly value and use value, but only the former will normally be affected by misuse of the secret. On this basis, some courts have held that information cannot be considered property. Nevertheless, a comparison of the attributes of trade secrets with those of orthodox property reveals that some of the key attributes of orthodox property rights to create, use, alter, destroy, exchange etc. do seem to be shared by information. However, the problem arises due to the fact that once the secret is revealed, the usual ideas of legal and equitable title cannot be applied.

Passing off under trademark
The concept of passing off has undergone changes in the course of time. At first it was restricted to the representation of one person's goods as those of another. Later it was extended to business and services. Subsequently it was further extended to professions and non-trading activities. Today it is applied to many forms of unfair trading and unfair competition where the activities of one person cause damage or injury to the goodwill associated with the activities of another person or group of persons.

Infringement of trademark and what constitutes honest practice in relation to trade and business
A trademark is often defined as: a word, name, symbol or device that is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A service mark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. The terms "trademark" and "mark" are commonly used to refer to both trademarks and service marks.

Section 25 of The Trade Marks Act, 1999
The present paper deals with the nature of the sending of notice by the Registrar under section 25 of the Trade Marks Act, 1999 enacted by the Parliament of India. The section 25 i.e. Duration, Renewal, Removal and Restoration of Registration falls in the periphery of the Chapter-III titled Procedure for and Duration of Registration

Registration of Unconventional Trademarks:
A trade mark may be a word signature, name, device, label, numerals or combination of colours used by an undertaking, on goods or services or other articles of commerce to distinguish it from other similar goods or services originating from a different undertaking. Under the Trade Marks Act, 1999, goods and services are classified according to the International Classification of goods and services. Schedule IV of the Act provides a summary list of such goods and services falling in different classes: but this is merely indicative. The Registrar is the final authority in the determination of the class in which particular goods or services fall.

Economic Dimensions in Trademark Law:
The foundations of the Trademarks Act are based on the safeguarding of the economic rights of the owners of the trademark and also to protect the common man to not to fall a prey to those who use deceptive practices in this trade.

Trade Mark Law in India and Its Violation:
A trademark or trade mark is one of the elements of Intellectual Property Right and is represented by the symbol TM or ® or mark is a distinctive sign or indicator of some kind which is used by an individual, business organization or other legal entity to identify uniquely the source of its products and/or services to consumers, and to distinguish its products or services from those of other entities. A trademark is a type of intellectual property, and typically a name, word, phrase, logo, symbol, design, image, or a combination of these elements. There is also a range of non-conventional trademarks comprising marks which do not fall into these standard categories.

Lanham Act, defines a trademark as "any word, name, symbol, or device or any combination thereof adopted and used by a manufacturer or merchant to identify his goods and distinguish them from those manufactured or sold by others."

Trademarks are afforded a legally protected status under the Act because they benefit society by promoting competition among sellers, protect the public from deceit, and guarantee product quality The law protects trademarks by allowing them to be registered and retained for exclusive use by the trademark holder.

Copyright India

Trademark Registration Forms

Trademark Registration Form

Trans border reputation of Trade Marks:
international reputation of trade marks. It states that if a trade mark is not registered or used in a country

Protecting Trade Marks:
India has seen a rapid growth in its economic structure and one of the major reason being the global presence of the India

Use of Trademark In Comparative Advertising: India enacted its new Trademarks Act 1999 (the TM Act) and the Trademarks Rules 2002, with effect.

Protecting Domain Names as Trade Marks:
EasyGroup IP Licensing Limited applied in the U.K. to register the trade mark EASY.COM in association.

Single Colour Mark - It's Register ability in the United States and the United Kingdom: Non-traditional trademark, also known as a non-conventional trademark is any type of trademark

Economic Dimensions in Trademark Law: The foundations of the Trademarks Act are based on the safeguarding of the economic rights of the owners of the trademark and also to protect the common man.

Trademark Disputes over Domain Names: With the globalization and commercialization of the Internet, domain names have taken on a new significance as business identifiers.

Intellectual Property: Having ownership of intellectual property rights in a product gives one certain exclusive rights to do things with the product. Generally.

Comparative Advertisement and Infringement of Trademark: Its all about the comparative advertisement done by the media and what is its effect on the consumers and up to which extent comparative advertisement can be done.

Trademark law
Trademark Rules,2017
celebrity marks
Passing off
TM Section 25
Trade Secrets
Traditional Medicine and TM
Infringement & Remedies

Trade Mark Suit
File Infringement
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Sound TM
Honest practice in TM
TM in Music & Film
National IPR Policy 2016
TM pharmaceutical

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