Trademarks in India
Trademark and brand names play a very crucial role, as they act as a source of identity for any entity. With increased IPR awareness entities are aggressively protecting their trademarks in India and globally. Trademark landscape in India is also nurturing day by day and entities and individuals in the quest to protect their trademark, brand names, logos etc from being copied are leaving no stone unturned to protect their goods from being copied.
A trademark in India is defined under Section 2 (1) (zb) of the Trademark Act, 1999. It is a distinctive sign or indicator used by an individual or an organization and is applied to the articles of commerce so as to identify the products of one trader from those of another.
Origin and Evolution of Trademark Law in India:
The origin of Trademark Law in India can be traced back prior to 1940 there was no statutory law relating to Trademarks in India. When common law principles of equity and passing off were administered for the protection of trademarks. In view of the lack of any specific legislation dealing with the nuances of infringement and passing off of trademarks, the Trademark Act of 1940 was enacted for the first time in India, providing a missionary of the registration and statutory protection for the Trademarks in India. 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 legislation was replaced. Accordingly the Trademarks Act, 1940 was substituted & replaced by the Trade & Merchandise Marks Act, 1958 and the Trade & Merchandise Marks Rules, 1959 was also framed. The 1958 Act & Rules 1959 was passed thereto 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 Customs 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 & Trademark Rules, 2002 were framed, which came into effect on September 15, 2003. The Trademark Act, 1999 inter alia aims at providing for the registration of service trademarks and collective trademarks, enhanced protection to marks categorized as well- known marks, and the constitution of the Intellectual Property Appellate Board (IPAB) for speedy disposal of appeals and rectification applications.
Thereafter in the year 2010 the Trademark Act, 1999 was amended vide the Trade Marks (Amendment) Act, 2010. Through the Trademark (Amendment) Act, 2010, the Legislature incorporated Chapter VI in the Act which embodies Special Provisions Relating to Protection of Trademarks through International Registration under the Madrid Protocol. Thus, the Indian Trademark Law covers national as well as international trademark registrations within its purview.
A trademark performs the following functions:
- Renders an exclusive right on the owner of the mark to use the trademark to identify good produced or services rendered by it;
- Prevents others from making fraudulent use of the mark;
- A trademark owner can commence legal proceedings of trademark infringement for preventing unauthorized use of his registered mark by a third party;
- An unregistered trademark can be protected under the common law principle of passing off;
- Prevents unfair competitors from the usage of similar or deceptively similar marks;
- Protects the skill and intellect of any company
Currently, the Trademark law in India is primarily governed by the Trademark Act, 1999 and the Trademark Rules of 2017 framed under the Act. The Act and Rules enumerate the procedural aspects of trademark filing, examination, publication, opposition, registration, renewal, rectification and removal of a trademark. Similar to Patents, the Chief Administrator of the trademark system in India is the office of the Controller General of Patents, Designs and Trademarks (‘CGPDTM’) functioning under the aegis of the Department of Industrial Policy and Promotion (‘DIPP’), Ministry of Commerce and Industry.
The whole process of successful registration of a trademark involves several stages- right from trademark search to trademark registration and further renewal. Each stage involves fulfillment of procedural requirements and documentation.
Madrid Protocol & India
Here it would be pertinent to mention that in a significant move, in the year 2013 India also acceded to the Madrid System of Trademark Registration which allows the registration of a trademark in multiple jurisdictions. Pursuant to this the Indian Trademark Office also released rules and guidelines for the International registration of trademarks under the Madrid System.
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