Trademarks

A trademark is a sign, symbol, logo, word, phrase, design, or a combination of these elements that is used to distinguish the goods or services of one party from those of another. Trademarks serve as a means for consumers to identify the source of the goods or services and to distinguish them from those of other companies.

In India, trademarks are governed by the Trademarks Act, 1999. The Act defines a trademark as a mark that is capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others.

A trademark can be registered in India by filing an application with the Trademark Registry. The application must include the following information:

• Name and address of the applicant
• Description of the goods or services to which the trademark will be applied
• A clear representation of the trademark
• Details of any priority claim if applicable

The registration process involves examination of the application by the Trademark Registry, which checks for conflicts with existing trademarks and ensures that the application meets all the necessary requirements. If the application is accepted, the trademark will be published in the Trademarks Journal for opposition. If no opposition is filed, the trademark will be registered and a certificate of registration will be issued.

Registered trademarks are protected under the Trademarks Act, and the owner of a registered trademark has the exclusive right to use the mark in relation to the goods or services for which it is registered. The owner can take legal action against anyone who uses the mark without permission or in a way that is likely to cause confusion or deception. The term of registration for a trademark in India is 10 years, and it can be renewed indefinitely for further periods of 10 years each.

Types:

• Word mark: A word mark is a type of trademark that consists solely of words, letters, or numerals. For example, “Nike” is a word mark.
• Device mark: A device mark is a type of trademark that consists of a logo, symbol, or design element. For example, the Nike “swoosh” symbol is a device mark.
• Shape mark: A shape mark is a type of trademark that consists of the shape of the goods themselves or the packaging in which they are sold. For example, the Coca-Cola bottle is a shape mark.
• Sound mark: A sound mark is a type of trademark that consists of a sound or musical notation. For example, the NBC chimes are a sound mark.
• Smell mark: A smell mark is a type of trademark that consists of a scent or odor. For example, the smell of fresh cut grass can be a smell mark for a lawn care company.
• Colour mark: A colour mark is a type of trademark that consists of a specific colour or combination of colours. For example, the colour purple is a registered trademark of Cadbury’s chocolate.
• Three-dimensional mark: A three-dimensional mark is a type of trademark that consists of a three-dimensional shape, such as the shape of a product or its packaging. For example, the Toblerone chocolate bar shape is a three-dimensional mark.
• Service mark: A service mark is a type of trademark that is used to distinguish services rather than goods. For example, the phrase “Just Do It” is a service mark used by Nike for their advertising campaigns.

Trademarks laws INDIA

In India, the main law governing trademarks is the Trade Marks Act, 1999, which was amended in 2010 and 2017. The Act defines a trademark as a mark capable of being represented graphically and capable of distinguishing the goods or services of one person from those of another. The Act provides for the registration, renewal, and protection of trademarks in India.

Some key provisions of the Trade Marks Act, 1999 are:

• Trademark registration: Any person can apply for trademark registration in India. The application must contain a representation of the trademark, the goods or services for which the trademark is sought, and the class or classes of goods or services for which registration is sought.
• Examination: Once the application is filed, the Trademark Registrar examines the application to determine whether the trademark is distinctive and does not conflict with any existing trademarks. The Registrar can issue a refusal or an objection to the application, which can be challenged by the applicant.
• Opposition: After the examination, the application is published in the Trade Marks Journal, and any person can oppose the registration of the trademark within three months from the date of publication.
• Registration: If no opposition is filed, or the opposition is dismissed, the trademark is registered and a certificate of registration is issued. The registration is valid for 10 years, after which it can be renewed.
• Infringement: The Act provides for civil and criminal remedies in case of trademark infringement. A registered trademark owner can initiate a civil suit for infringement and claim damages. In certain cases, criminal action can also be taken against infringers.
• Well-known trademarks: The Act recognizes well-known trademarks and provides for their protection, even if they are not registered in India.
• Assignment and licensing: A registered trademark can be assigned or licensed to another person with the consent of the registered owner. The Act provides for the recording of such assignments and licenses.