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TRADEMARKS IN INDIA

 

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As per the trademark law in India, a trade-mark is a distinctive sign which identifies certain goods or services as those produced or provided by a specific person or enterprise. When a trademark is used in relation to services rather than products, then it is referred to as a service mark.

 

A trademark performs the following basic functions:

  • Identifies the source and origin of goods.

  • Distinguishes the trade mark owners’ goods and services from that of others. • Helps in advertising.

  • Creates brand loyalty.

A trademark may be designated by the following symbols:

 

™ (for an unregistered trade mark, that is, a mark used to promote or brand goods) ℠ (for an unregistered service mark, that is, a mark used to promote or brand services) ® (for a registered trademark)

 

A trademark is typically a name, word, phrase, logo, symbol, design, image, or a combination of these elements. Apart from the said traditional trademarks, the Indian Trademark Law also recognizes non-conventional trademarks such as three- dimensional marks, shape marks, color marks, sound marks, etc.

 

Origin and Evolution of Trademark Law in India:

 

The origin of Trademark Law in India can be traced back prior to 1940 when common law principles of equity and passing off were administered for protection of trademarks. In view of the lack of any specific legislation dealing with the nuances of infringement and passing off of trademark, the Indian Trademark Law was passed in the year 1940. The statutory provisions in the Trademark Law substantially corresponded with the English Laws and precedents.

 

Thereafter, considering the augmentation in trade and commerce, a need was felt by the Legislature for robust proprietary laws and accordingly the legislature replaced the Act of 1940 with Trademark and Merchandise Act, 1958. The 1958 Act was passed with the objective of extending better protection to trademarks and it also consolidated provisions relating to trademarks in other Statutes like the Indian Penal Code, Criminal Procedure Code and the Sea Custom Act.

 

In order to conform to the requirements of Trade Related Aspects of Intellectual Property Rights (TRIPS) and in view of enhanced globalization of trade and technology, the Trademark Act, 1999 was passed by the Legislature which came into effect on September 15, 2003. The Trademark Act, 1999 inter alia aims at providing for registration of service trademarks and collective trademarks, enhanced protection to marks categorized as well- known marks, constitution of Intellectual Property Appellate Board (IPAB) for speedy disposal of appeals and rectification applications.

 

In the year 2010 the Trademark Act, 1999 was amended vide the Trade Marks (Amendment) Act, 2010. Through the Trademark (Amendment) Act, 2010, which received the assent of the President on the September 21, 2010, the Legislature incorporated Chapter IV A in the Act which embodies Special Provisions Relating to Protection of Trademarks through International Registration under the Madrid Protocol. Thereafter on March 6, 2017 the Trade Marks Rules, 2017 were notified which replaced the erstwhile Trade Mark Rules, 2002.

 

Apart from the aforesaid statutory provisions, the Indian Judiciary has played an elementary role in evolving the Indian Trademark Law. Time and again the Indian Judiciary has been confronted with cases containing contentious issues relating to trademarks and has accordingly delivered judgements with respect to them. These judgments and observations of the Judiciary has become the foundation of present Trademark Law in India.

 

Laws governing Trademark Law in India:

 

Trademark Act, 1999

Trademark Rules, 2017

For more information on Trademark in India please write to us at: info@ssrana.com

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