India borrowed the British Trade Marks Act of 1938 and made the first act on the subject, the Trademark Act of 1940. The Parliament enacted the Trade Marks Act of 1999, replacing the Trade and Merchandise Marks Act of 1958. The new act was put into effect in September 2003. The new law took into account the changes that have taken place in the economy and business practices, and it would provide better protection for trademarks.
Trade Marks Act, 1999 defines the word trademark under Section.2(1)(zb), which means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include the shape of goods, their packaging, and combinations of colors.
Essentials of IP Trademark
1. It must be capable of distinguishing the goods or services of one person from those of others. The IP trademark must identify as unique and must be different from those of other undertakings.
2. It must be used or proposed to be used in relation to goods or services.
3. Use must be of a printed or other visual representation of the mark. The trademark should be one that suggests a label, signature, term, brand, set of colors, or integration of these characteristics.
4. The selected IP trademark must be simpler to pronounce, spell, and recognize. This is done to make sure that people will remember it and recognize it right away.
Types of IP Trademarks
1. Generic Mark: A generic mark must represent the attributes, traits, or components of the product your company offers in order to qualify as a trademark.
2. Suggestive Mark: The word “suggestive” denotes the fact that a buyer must use their imagination to ascertain what products or services the business provides.
3. Descriptive Trademarks: These marks are words that define the business or product they stand for, but they also need to have at least one additional meaning.
4. Arbitrary Trademarks: In this case, the term will either be entirely fictitious or will be a widely used word or phrase that has nothing to do with the real good or business.
5. Collective Trademarks: Collective trademarks are the kinds of trademarks that are connected to a group of individuals rather than a particular commodity or service. These trademarks are frequently owned by institutions and organizations.
6. Certification Mark: A certification mark is a trademark that demonstrates that a business has reached a certain quality level. This trademark signifies that the business supplying the trademark has complied with a certain standard.
Who can file an IP Trademark application?
Whether registered or not, businesses and individuals can file for trademarks in India. An IP trademark application may be made in the name of an individual or an entity. Additionally, two additional people can apply for a trademark jointly without using an organization.
A Power of Attorney signed by the applicant must be used to authorize a trademark agent to file the Trademark application with the Trademark Registry. After receiving the acknowledgment, the trademark agent files the application with the Trademark Registry. The Trademark Agent will receive all letters and communications pertaining to the TM registration procedure.
Registration of IP Trademark
According to Section 18 of the Trademark Act of 1999, the registered proprietor or an agent acting on his behalf may register a trademark. The Act prohibits anybody who is not the Proprietor/representative Owner from registering a trademark, even a simple licensee. The application may be submitted physically or electronically.
An IP trademark registration grants a monopoly over a particular mark in a given area. It also aids in the expansion and success of the company. With the aid of a business lawyer who will counsel you and provide the right kind of online legal advice or a company attorney who will provide the appropriate business consultation, trademarks may be readily registered.
Benefits of Registering IP Trademark
1. The registration is prima facie evidence of ownership and confers the right of exclusive use on the registered proprietor of the trademark in relation to the goods or services concerned.
2. The registered proprietor of the IP trademark can obtain relief in respect of infringement of the trademark.
3. The registration is constructive notice of the registrant’s ownership claim; that is, everybody is presumed to know about the exclusive right of the registered proprietor to use the trademark.
4. Registration enhances the reputation of the owner of the trademark.
5. It provides protection against imports that cause infringement.
6. Infringement of an unregistered trademark entails serious consequences to the erring person resulting in the imposition of fine, imprisonment, or both.
Renewal of IP Trademarks
According to Section 25, a period of ten years is the duration of the trademark, but this may be renewed from time to time. The Registrar shall, on an application made by the registered proprietor of a trademark in the prescribed manner and within the prescribed period and subject to payment of the prescribed fee, renew the registration of the IP trademark for a period of ten years from the date of expiration of the original registration or of the last renewal of registration.
Infringement of IP Trademarks
A registered IP trademark is infringed by a person if he uses such a registered trademark as his trade name or part of his trade name or his business concern dealing in goods or services in respect of which the trademark is registered.
The following acts do not constitute an infringement of the right to use a registered IP trademark:
1. Use of a trademark in honest practices in industrial and commercial matters that do not take unfair advantage.
2. Use of a trademark in relation to goods to which the mark has been lawfully applied.
3. Use of a trademark or a similar mark in the exercise of a right conferred by independent registration.
4. Assignment of trademark to another.
Trademarks safeguard the goodwill of the entity that owns the mark, ensuring free competition. It is essential to register a trademark, as the individual will receive several benefits in the form of rights, and no other party will be allowed to infringe or commercially exploit the goods or services. Furthermore, when business owner understands the different kinds of IP trademarks, they can ensure that they register for one that will be approved and draw attention to their brand. Trademark registration in India is now important, not because of an obligation, but because of a need.