Trademarks fall under the umbrella of Intellectual Property Rights along with copyrights, patents and geographical indications
A trademark is a sign or a collection of various signs used to distinguish goods and services offered by one company as to same goods and services offered by another company.
Trademarks have tremendous importance as it distinguishes one product from the other similar product and allows to maintain healthy competition among product players in the market. As competition among products increase due to globalization, the value of trademarks will also increase.
Trade marks also help the consumers to make decisive choices and they can also be assured about the quality and creditability of the brand. Trademarks can be considered as a way of communication between the company and the consumers.
Article 15.1 of the TRIPS Agreement defines trademark as,
Any sign, or any combination of signs, capable of distinguishing the goods or services of one undertaking from those of other undertakings, shall be capable of constituting a trademark. Such signs, in particular words including personal names, letters, numerals, figurative elements and combinations of colours as well as any combination of such signs, shall be eligible for registration as trademarks. Where signs are not inherently capable of distinguishing the relevant goods or services, Members may make registrability depend on distinctiveness acquired through use. Members may require, as a condition of registration, that signs be visually perceptible.
India’s obligations under the TRIPS Agreement for protection of trademarks, inter alia, include protection to distinguishing marks, recognition of service marks, indefinite periodical renewal of registration, abolition of compulsory licensing of trademarks, etc.
Service marks are same as trademarks the only distinguishing factor between service marks and trademarks is that service marks are given to services
Usually, trademarks are consist of signs and indications which help the consumer distinguish between products, the signs and indications need to be in local language or in the language according the consumer market the product is being sold.
Examples of trademarks are,
Smell and Texture Marks
Well-known Trademark and Trans Border Reputation
India recognises the concept of the “Well-known Trademark” and the “Principle of Trans Border Reputation”. A well-known Trademark in relation to any goods or services means a mark that has become so to the substantial segment of the public, which uses such goods or receives such services such that the use of such a mark in relation to other goods and services is likely to be taken as indicating a connection between the two marks.
Trans Border Reputation concept was recognised and discussed by the Apex Indian Court in the landmark case of N. R. Dongre v. Whirlpool (1996) 5SCC 714. The Trademark “WHIRLPOOL” was held to have acquired reputation and goodwill in India. The Mark “WHIRLPOOL” was also held to have become associated in the minds of the public with Whirlpool Corporation on account of circulation of the advertisements in the magazines despite no evidence of actual sale. Hence, the trademark WHIRLPOOL was held to have acquired trans-border reputation which enjoys protection in India, irrespective of its actual user or registration in India.
In India the Trademarks Act,1999 was enacted which governs Trademarks in India. The Act is in compliance with the TRIPS Treaty and the other international systems and practices.
It is always better to register your trademark as a registered trademark has more rights and protection in case of infringement of the trademark. Unregistered trademarks will need the use the concept of ‘passing off’ from Tort law when a company’s trademark is infringed or misappropriated.
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