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Trademarks and Service Marks

The document discusses trademarks and service marks under Indian law. It defines what trademarks and service marks are, how they function to identify products and establish goodwill, and how they are protected. The key law governing trademarks is the Trademarks Act of 1999, which provides for registration of marks and protection of registered trademark owners' rights. The process of registering a trademark in India involves filing an application, advertising it, allowing for oppositions, and ultimately registering the mark if approved.

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Janakiraman R
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129 views4 pages

Trademarks and Service Marks

The document discusses trademarks and service marks under Indian law. It defines what trademarks and service marks are, how they function to identify products and establish goodwill, and how they are protected. The key law governing trademarks is the Trademarks Act of 1999, which provides for registration of marks and protection of registered trademark owners' rights. The process of registering a trademark in India involves filing an application, advertising it, allowing for oppositions, and ultimately registering the mark if approved.

Uploaded by

Janakiraman R
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as DOCX, PDF, TXT or read online on Scribd
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TRADEMARKS AND SERVICE MARKS

A trademark is a symbol that is used to distinguish the goods of one enterprise from
its competitors. A trademark may consist of a single letter, logo, symbol, design, or numerals
and three-dimensional features such as shape and packaging, etc. Section 2(zb) of the
Trademarks Act, 1999 defines “trademark” as a mark capable of graphical representation and
which can be used to distinguish the goods or services of one person from those of others. A
trademark may include the shape of goods, their packaging, and a combination of colors.
Hence, distinctiveness is the hallmark of a trademark.

Trademarks used in connection with services such as tourism, banking, etc., are called
Service Marks.

The owner has the exclusive right to the use of a registered trademark. There are 45
classes of trademarks, consisting of 34 classes of products and 11 classes for services.

What is the function/purpose of a trademark

 A trademark is a symbol that identifies a product and its source.


 It reflects the goodwill of a business.
 It assures the consumer about the established quality of the product.
 It serves as an advertisement for the product.
 A registered trademark provides legal protection to your brand.
 It helps to establish a dedicated consumer base by preventing others from imitating
your brand.

Law regulating to trademarks in India: The Trademarks Act, 1999

The Trademarks Act 1999 was enacted to provide for the registration and better
protection of trademarks for goods and services, as well as to prevent the use of fraudulent
marks. The Act contains provisions regarding:

1. Registration of trademarks
2. Effect of registration
3. Rights of the trademark holder
4. Special provisions relating to protection of trademarks through international
registration under the Madrid Protocol
5. Use of trademark and registered users

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6. Collective marks
7. Certification of trademarks
8. Assignment and transmission of trademark
9. Infringement and passing off action in trademark and legal remedies thereof, etc.

A trademark is registered for 10 years but it can be periodically renewed and can be used for
an indefinite period.

Infringement of trademark

In order to constitute infringement of a registered trademark, following conditions are


required to be fulfilled:

1. The person is not authorized to use the trademark.


2. The infringing trademark is similar/identical/deceptively similar to the already
registered trademark.
3. The infringing trademark must be used in the course of regular trade in which the
registered proprietor or user is already engaged.
4. The infringing trademark must be printed and represented usually in advertisements,
invoices or bills. Mere oral use of a trademark is not infringement.
5. Using either the whole of the registered trademark or an adopted one by making a few
additions and alterations.

Section 29 of the Trademarks Act provides for the common forms of trademark infringement.
For instance, the advertisement of a registered trademark of another for promotion of one’s
trade amounts to infringement. Following remedies are available to the trademark owner
against infringement of his trademark:

1. Filing suit for infringement


2. Criminal remedies

Process of registration of trademark in India

The various steps involved in registration of trademark are as follows:

Application for registration

 A person claiming to be the proprietor of a trademark used or proposed to be used by


him, who desires to register it has to file an application with the Registrar for

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registration of his trademark. Such an application shall be made in writing and must
be accompanied by prescribed fees.
 A single application may be made for registration of a trademark for different classes
of goods and services.
 The application has to be filed in the office of the Trademarks Registry within whose
territorial limits the principal place of business in India of the applicant is situated.

Refusal, acceptance and withdrawal of acceptance

 The Registrar may accept or reject an application after it has been received. The
application may be accepted with or without amendments, modifications, conditions
and limitations.
 If after acceptance, but before registration, the Registrar discovers that the application
was erroneously accepted, he may withdraw the acceptance.

Advertisement of application

 The Registrar shall, after acceptance of the application, cause the application to be
advertised in the prescribed manner.
 The application is advertised in the Trademark Journal for the purpose of inviting
objections from interested people.
 The Registrar may cause the application to be advertised before acceptance in certain
cases.

Opposition to registration

 Any person may within 4 months from the date of the advertisement give a written
notice of his opposition to the registration. The notice of such registration is given to
the applicant and thereafter evidence is submitted to the Registrar. After hearing the
parties, the Registrar decides as to whether the registration is to be permitted or not.

Registration

 If the application for trademark registration is accepted and not opposed, or if


opposed, the objection is ruled in the applicant’s favor, the Registrar must register the
trademark within 18 months of the filing of the application.
 The date of registration of a trademark is the date of making of the said application.

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 On registration of a trademark, the Registrar shall issue to the applicant a certificate in
the prescribed form of the registration thereof, sealed with the seal of the Trademarks
Registry.

Benefits of trademark registration

1. A registered trademark is an intangible asset that adds value to the business.


2. Trademark registration aids in creating brand value and gaining a strong position in
the market.
3. Registration of a trademark is prima facie evidence of its validity.
4. The registered trademark holder has the exclusive right to use that mark and to obtain
relief in case of infringement of trademark.
5. Trademark registration is for a period of 10 years and can be renewed as well.
6. A registered proprietor of a trademark has the right to transfer his rights through
license or assignment of his trademark.

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