This Article is written by Sanyam Khatri, BBA-LLB student of Gitarattan International Business school
The object of the trademark is to form the products of a manufacturer or trader known to the general public as his and thereby enable him to secure in course of time such profits as may accrue from the reputation which he may build-up for his goods by ability, efforts, and enterprise. To the purchaser, a real trademark gives assurance of the make and therefore the quality of the article he’s buying. The concept of trademarks and therefore the law governing the utilization thereof owe their origin to business competition, practice and custom.
Often a considerable amount of cash is spent in making a reputation or symbol popular through various media of advertisement. As a result, the trademark may acquire a great reputation, and should often become a stamp of quality and a logo of origin. A good trademark is the best salesman of the products. Every manufacturer or trader who has built up a reputation for his mark is of course jealous of protecting it against piracy by unscrupulous competitors. Protection of trademarks is important not just for honest traders but also for the advantage of the purchasing public against imposition and fraud.
At common law, the reputation of a business, symbolized through a reputation or label, is often protected only by an action of passing off, the procedure that is cumbersome and the outcome uncertain. Registration of a trademark under the Trade Mark Act, 1999 confers on the proprietor certain statutory rights which are fur more extensive than common law rights and affords a convenient means of protecting those rights against infringement.
Action against infringement of trademark has been made a statutory right under the Trade Marks Act. But the action against passing off of trademarks has only been recognized by the Act. The Act merely lays down the procedure to be followed in such an action. The substantive part constituting the principles and the grounds for such an action still form part of the common law, from which it has been adopted.
The project aims at analyzing the law concerning infringement and spending off of the trademarks. It aims at bringing out the difficulties that are faced by the court choose in an action of passing off, thanks to its common law origin and its want of being a statutory remedy.
The project ends with a couple of observations and suggestions suggested by me after analyzing the literature and therefore the case laws on the topic. I suggest registration of trademarks be made compulsory to cover up lacunas created due to lack of binding principles in case of establishing a passing-off action.
HISTORY OF TRADEMARK:
Both federal and state governments craft U.S. trademark laws. There also are several international treaties and organizations governing international trademarks. Federal and international laws are quickly supplanting state regulations now that such a lot of commerce is national, if not international in scope. Regardless, if you get yourself during a spot of legal trouble regarding U.S. trademark issues, your attorney should consult relevant state laws just in case there’s a state law remedy or claim which will help your case.
Royal patronage increased volumes of manufacture & trade fine porcelain, furniture & tapestries & trade fine porcelain, furniture & tapestries increased. increased. The use of trademarks and logos to point quality and logos to point quality and origin also grew. origin also grew. End of 14 End of 14th century century ‘producers or guild marks producers or guild marks ’ appeared and spread throughout western Europe appeared and spread throughout western Europe to point the guild or trade association to which to point the guild or trade association to which craftsmen belonged. craftsmen belonged. A second unique mark was also wont to identify workmanship of craftsmen just in case “> just in case of defects workmanship of craftsmen in case of defects ( more liability than asset)
As said, the trademark law in India was built to guard the trademarks statutorily under the Trademark Act, 1999. Where Trade Marks Act protects registered Trademarks, the Passing Off of an unregistered trademark is actionable under common law to guard the goodwill attached to the unregistered trademark.
The legal protection of a trademark is run by the Controller General of Patents, Designs, and Trade Marks, an agency which reports to the Department of commercial Policy and Promotion (DIPP), under the Ministry of Commerce and Industry.
WHAT IS A TRADEMARK AND ITS IMPORTANCE
A trademark could be a word, phrase, style or image, or combination therefrom, that identifies the supply of products of 1 party and distinguishes those goods from the products of others. A service mark identifies and distinguishes the supply of services instead of a product. The term “trademark” is commonly accustomed checked with each emblem and repair mark.
In observe, nearly any “device” will be a trademark (or service mark), as well as sounds, smells, color, trade dress and moving pictures, restricted solely by creative thinking and emblems and repair-marks ar Associate in Nursing integral a part of our client market, and if properly used and guarded, might become enormously valuable assets. Selecting robust Marks to tell apart the products of 1 party from those of another—and to operate as a trademark—a word, phrase, style or image should be distinctive.
A mark’s distinctiveness determines, in part, the strength of a mark and therefore the degree to that it will be protected emblems will usually be categorized into one among four classes of distinctiveness, from most to least distinctive: coined, arbitrary, suggestive, and descriptive.
Words and styles that lack any distinctiveness represent a fifth class, “generic,” and can’t operate as emblems. A trademark is any word, sound, symbol, slogan, or style that serves to spot a particular product or service whole
1. Trademarks make it easy for consumers to seek out you. ◦ Trademarks assist you to distinguish your products and services from those of competitors and help identify you because of the source. ◦ Trademarks indicate a uniform level of quality of your products and services. ◦ Awareness of your brand and therefore the goodwill embodied in your trademark can often take decades to determine
2. Trademarks help prevent marketplace confusion. Trademarks protect the consuming public by preventing confusion on the source of products or services. If the merchandise made under a brand seems to be defective, consumers have accurate information about the source of a product and may return it to the manufacturer or supplier for a refund. Trademarks give consumers the power to guard themselves by relying upon known brands of products or services.
3. Trademarks are an economically efficient communication tool Trademarks dramatically reduce the prices of decision-making by allowing consumers to rapidly select the specified product or service from among competitive offerings. Trademarks can conclude during a single brand or logo intellectual and emotional attributes and messages about your: Company, Reputation, Products and services; and Consumers’ lifestyles, aspirations, and desires. Trademarks can work effectively across borders, cultures, and languages. ◦ Famous marks are often recognized as brands even when the native population speaks a special language and reads a special alphabet (i.e., the McDonalds “arches” logo, the NIKE “swoosh” logo).
4. Trademarks are your most enduring assets. Trademarks are one of the few assets which will provide you with a long-term competitive advantage. Trademarks are usually the sole business asset you’ve got which will appreciate over time. Trademarks are leverageable – they supply value beyond your core business and may pave the way for expansion (or acquisition, if desired) of your business. Brand Expansions: KELLOGG’S – from “ready-to-eat cereals” to “snack bars and breakfast bars” ARMANI – from “runway apparel” to “perfumes and eyewear” VIRGIN – from airline services to entertainment media and carbonated drinks
5. Trademarks support stronger sales volume, stronger margins, and may provide price maintenance legally. it’s often difficult to ascertain significant differences among competing products. Your brand is often the critical think about driving the consumer’s purchase decision. The worth variance among competitive offerings also can be substantial, often by 100% or more within the same setting, like a newspaper. once more, your brand can make a difference.
6. Trademarks are relatively inexpensive to guard Once you’ve got successfully registered a trademark, it’s a potentially infinite lifespan with the filing of renewals. Renewals are often filed every 10 years after registration within the U.S. goodbye because the mark is getting used in commerce (there are certain exceptions to the present use requirement which will not be discussed here). COLT (first registered in 1889)) QUAKER (first registered in 1895) PEPSI-COLA (first registered in 1896) MERCEDES (first registered in 1900)
TYPES OF TRADEMARKS
1.) Name – Coco Chanel could be a good example of a reputation that’s a trademark. The noted designer coconut Chanel engineered her made fashion empire by victimization her name. folks knew that if they were to get a coconut Chanel product they were attending to receive quality craft. Through her name of getting a wonderful style, her name became recognizable around the world. Her name is taken into account as a trademark as a result of its conjointly the name of her company and is employed to differentiate herself from alternative designers and generic covering makers.
2.) Image – The McDonald golden arch could be a classic example of an emblem trademark. Golden arches align interstate highways to alert customers once there’s a Mcdonald’s set at the next exit. there’s no mention of the name McDonald’s on these golden arches. McDonald’s doesn’t have to be compelled to. the final public, by in giant, still as their customers apprehend that a golden arch represents McDonald’s. Their golden arch image differentiates them from alternative aliment restaurants.
3.) Catchphrases – a motto that’s identifiable to an individual or company that’s wont to sell merchandise may be proprietary. Donald Trump’s “You’re Fired” could be a good example of a trademark motto. Donald Trump uses his motto on his reality program “The Apprentice”.
4.) Figure or organism – a classic example of a trademark character is Geico’s talking lizard. Geico’s talking lizard was featured in several commercials advertising Geico’s insurance. The lizard became an organism to the corporate. This talking lizard is currently recognized by thousands of Yankee households nationwide.
5.) Lyrics – A songwriter’s lyrics square measure logos. Bob Seger and therefore the solution Band created a successful single song “Like a Rock” in 1986. In 1991, this song helped Chevrolet get well from a close to a bankruptcy scenario. The “Like a Rock” commercials were thus made that these commercials were used for over 10 years. Chevrolet paid Seger royalties for licensing his trademark, “Like a Rock”.
DIFFERENCE BETWEEN TRADEMARK AND BRANDING
Seen through the eyes of a marketer: It’s clear that trademark and whole square measure are closely connected and cannot be separated. A whole is spoken because the representative components of a company’s company image, that build and develop over time by making trust, whereas a trademark provides legal protection for the whole. As firms don’t desire to lose the capital investment they created in making their whole, they ought to utilize trademark protection. emblems don’t have to be compelled to be registered, however, there square measure sure facilities granted to the owner of a registered trademark as against the owner of AN unregistered trademark UN agency usually has difficulties to prove the existence and extent of its right
What is a Brand?
This is a reputation that relates to merchandise and services offered by a corporation that evokes positive pictures and emotions to the buyer. the weather concerned in a very whole embody temperament, culture, identity, image, character, name, and essence. the worth of a whole is therefore determined by the named components. thanks to its significance, whole names square measure usually protected by the various firms, failure to that the brand’s components are freely utilized by people. though a name doesn’t offer any legal protection from external use, it offers a perceived price that solely the whole can give, to not mention recognition. While whole refers to maybe a name that relates to merchandise and services offered by a corporation that evokes positive pictures and emotions to the buyer, trademark refers to a registered trade or name, logo, color, sound, or motto that primarily identifies a corporation to its services or merchandise. it’s vital to trademark brands thus on get pleasure from legal protection edges.
Differences between whole and Trademark:
Definition
Brand refers to maybe a name that relates to merchandise and services offered by a corporation that evokes positive pictures and emotions to the buyer. On the opposite hand, trademark refers to a registered trade or name, logo, color, sound, or motto that primarily identifies a corporation to its services or merchandise.
Legal protection
While a whole will have any legal protection against use by people, a trademark has legal protection against use by people.
Scope
While not all brands square measure emblems, all emblems square measure brands
TRADEMARK INFRINGEMENT
It is outlined because of the unauthorized use of a trademark or service mark. This use is often about products or services and will result in confusion, deception, or a misunderstanding concerning the particular company a product or service came from. Trademark homeowners will take action at law if they believe their marks area unit is being infringed. If an infringement of a trademark is tried, a writ will stop a litigant from victimization the mark, and also the owner is also awarded financial relief. Courts think about varied factors to work out whether or not a trademark was infringed. Whether the complainant features a valid trademark. A trademark is often valid as a result of it being formally registered, or as a result of its claim beneath common law. Whether the trademark is getting used by the litigant. Whether the defendant’s use of the mark is “in commerce.” Whether that use is connected to the sale, offer distribution, or advertising of a product. Whether the defendant’s use of the trademark is probably going to confuse customers. This last issue, client confusion, is that the main topic of dialogue in most cases.
What area unit the Remedies for Trademark Infringement?
The owner of the Registered Trademark will begin legal proceedings against the infringer stating the unfair business practices. There are unit 2 styles of remedies that area unit out there to the owner of the trademark against the unauthorized use of its limitation by the third party. The Trade Marks Act protects the trademark with civil and criminal remedies. Civil proceedings are often initiated by the trademark owner before the District Court in whose jurisdiction the owner resides. Civil Remedies for Trademark Infringement area unit out there in following heads:
1. In sort of Injunction: The action of associate injunction is referred to as stopping one person from doing an explicit activity or task through the judicial method. With relevance trademark infringement, it’s restraining someone from unauthorized use of the trademark. Through a brief or permanent keep, the Court grants protection to the trademark owner.
2. In sort of Damages: Damages confer with the recovery of loss sweet-faced by the trademark owner through the trademark infringement. The price of economic loss or complete impairment is recovered beneath this head. the number of damages is granted by the court once considering the particular and anticipated loss of the owner because of infringement. The damages in Trademark law as a relief have progressively assumed importance and also the main aim of the damages is to monetarily compensate.
3. Custody of infringing materials: This remedy suggests that the Court might raise the infringer to deliver all the {products} or products that area unit labeled with the brand. Here, the Court might direct the authorities to withhold the connected materials accounts and destruct all such products. wherever the trademark relates to services, i.e. a Service Mark is infringed; the order is also passed to prevent the supply of the services directly by the infringer. In case of infringement/passing off trademark, the criminal grievance may also be filed and noted beneath the Trade Marks Act, 1999 that states the registered owner of the trademark features a likelihood to file the FIR through police on the infringer. Jurisdiction for a suit of infringement: The jurisdiction to begin the proceedings against the infringer is additionally set in line with the provisions prescribed. Section 134 of the Trade Marks Act, provides the jurisdiction of filing suit for infringement. The trademark owner might have instituted an infringement suit before District Court. the suitable District Court is that the one falling at intervals the native limits beneath whose jurisdiction, the person instituting the suit, i.e. the owner of trademark resides or keeps on the business activities.
CONCLUSION
In India, the awareness to protect the brand name through registration is increasing. However, the owners are still passive about the unauthorized usage of their registered trademark. Violations of the right over trademark can occur even internally to an organization, which affects the brand value as well as the market share of the owner’s business. With the help of a Trademark Attorney, one may recover and compensate all the damages that occurred due to the infringement.
REFERENCES
1. P Narayanan – Law of Trade Marks and Passing off, 6th Ed
2. Trade mark’s Act, 1999
