What is a Trade Mark?

A Trade Mark is a visual symbol in the form of a word , a device ,or a label applied to articles of commerce with a view to indicate to the purchasing public that is a good manufactured or other wise dealt in by a particular person as distinguished from similar goods dealt or manufacture by other persons.

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Object of Trade Mark

IS to deal with the precise nature of the rights which a person can acquire in respect of a TM The mode of attainment of such rights the method of transfer of those rights to others The precise nature of breach of such rights-and the remedies available in respect thereof.

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Functions of a Trade Mark

1. It identifies the product of its origin 2. It guaranties its unchanged quality 3. It advertises the products 4. It creates an image for products.

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What is a Good Trade Mark

1. It should be easy to pronounce and remember if it is word mark 2. In case of a device mark -should be capable of being described by a single word. 3. It was be easy to spell correctly and write legibly 4. It should not be descriptive 5. It should be short
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6. It should appeal to the eye as well as the ear. 7.It should not belong to the class of marks prohibited for registration 8. It should satisfy the requirements of registration.

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Time period of a trade mark

A registered trade mark can be protected in perpetuity subject only to the conditions that it is used and renewed periodically and proprietor takes prompt action against infringers.

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If, unregistered trade mark

A common law trade mark can be kept alive and protected for as long as it continues to be used provided the owner of the mark takes appropriate action against infringers by a passing off action or by criminal proceedings.

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Marks not Registrable

Mislead the public or cause confusion Hurt religious feelings of any section of the people of India A mark which contains immoral matter Prohibited under the Emblems and Names ( prevention of improper use) Act, 1950

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Laws Governing Trade Mark

Trade and Merchandise Marks Act, 1958 Trade Marks Act, 1999

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Precautions

Renew the mark from time to time He should not do anything which will have the effect of destroying the distinctive character He should not allow the mark to remain unused for more than 5 years continuously He should restrain others from infringing his mark by taking prompt action against them.
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Licensing of trade marks

Licensing of patent, a registered design or a copyright is allowed by law without any restriction. The present Act of 1999 has provided for licensing of registered trade mark without being registered as registered users under suitable conditions.

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Permitted user

The mark must remain registered for the time being The registered proprietor should consent to use by a written agreement The use must comply with any conditions or limitations to which such use is subject and to which the registration of the trade mark is subject.
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Certification Trade Mark

There is a species of trade mark called certification trade mark whose function is not to indicate trade origin as an ordinary trade mark but to indicate that the goods bearing the marks have been certified by the proprietor of the mark as to certain characteristic of the goods like geographical origin, ingredient and so on.
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Collective trade mark

Trade mark distinguishing the goods or services of members of an association of persons( not being a partnership firm) from those of others. The proprietor of the mark is the association.

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Concurrent registration

The adaption and subsequent use of the mark must be honest. The quantum of concurrent user is commercially significant and substantial having regard to duration, area and volume of trade. The degree of confusion likely to follow from the resemblance of the rival marks should be minimal
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Trade marks registry

An office called the trade mark registry has been established for the purpose of registration of trade marks, maintenance of the register and matter incidental thereto. The head office of the registry is at Mumbai. Branches: Kolkata, Delhi, Chennai and Ahemadabad.

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The Trade Marks registry is under the charge of the Registrar of Trade marks who is also the Controller-General of Patents and Designs. The Trade Marks registry has a seal.

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Service mark

A service mark is one which distinguishes the service rendered by one person from those of others. Service means service of any description which includes services in connection with business of any industrial or commercial matters such as banking, communication, education, financing, insurance, chit funds, real estate, transport and so on.
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Sum up

Distinctiveness Distinctive character Capable of distinguishing

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Distinctiveness

It must be capable of distinguishing the goods or services of the applicants from the goods or services of others.

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Distinctive character

It may be inherent in the marks itself as in the case of invented word, non-descriptive words, non-descriptive devices and so on. It can also be acquired by user as in case of words which have a descriptive significance, surnames or names of place which have no industrial or commercial importance.

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DOMAIN NAMES AND TRADEMARK LAW

What is a domain name?

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Whether a domain name can by itself be a trademark?

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Trade Mark Management

Trademark is a major asset of any company. Hence ' trademarks management ' in an enterprise comprises two aspects:

Trademark Policy Trademark Protection

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Trademark policy

Is a marketing function. Normally, the marketing personnel of an organization will take care of this trademark policy letter known as ' Brand Management '.

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Trademark protection

Is a legal function .In small enterprises one of the tasks of the legal department is to assure the protection of company's trademarks. In large enterprises there is need to create a specific department known as ' Trademarks department' which will look after the ' Trademarks Management '.

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The principal duty of the Trademarks Department is to protect and administer the trademark of the company i.e. by getting registration under the relevant laws of a particular country, the country of registration, the list and classes of goods and the services covered , renewals, action against the infringes and dishonest users and so on.
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Functions of the trade marks department

1) Advise the marketing department with regard to the choice of a new trademark. 2) Legal Clearance of a new trade mark by conducting searches in the Trademarks Registry and also in the market places with regard to the availability of identical or similar marks in respect of similar goods and services. 3) Submit Trademark Applications and Advise the company to go for registration in a country where the goods are to be exported or sold.
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4) Since there is globalization of industry and trade, it is better to seek International protection of the trademarks and other Intellectual Property. 5) Advise the company for proper use of trademarks after obtaining registration in order to avoid the attack on the registered trademarks on the ground of non-use by business competitors. 6) Initiate legal action against the infringes by filing civil suits or criminal complaint against the infringes and dishonest traders.
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7) To conduct search and raid the premises when the infringed or false goods are being manufactured or marketed with the help of local police personnel after lodging criminal complaint. 8) To maintain individual files for each and every trademark of the company for easy reference. 9) It is better to computerize the Trademarks Department by creating a software for this kind of ' Trademarks Management '.
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