SPECIFICATION OF TRADEMARK LAW IN INDIA

INTRODUCTION

Trademark is name, word, phrase, sign, symbol, design or expression and combination of all these things that identifies goods and service of provider. Trademark is a kind of Intellectual property Right which protects trademark owner can be considered an individual, business organisation or any legal entity such as Corporation, Government, Agency, and NGO.

 Trademark assist to identify the brand of particularly goods and services such as ‘NIKE’ is world largest and multinational supplier of Athletic shoes, ‘BISLERI’ is well known for water bottle, ‘FLIPKART’ is an Indian E-commerce company which provide online platform where anyone can sale their products, All these three brand have their own trademark over their product or services which is already registered. Registered trademark prevents labelled similar trademark over counterfeit goods and services or prevents use of fraudulent marks. Trademark owner has right to suit file in case of infringement trademark.

Designation of Trademark as TM   the trademark symbol TM  means unregistered Trademark  used to promote and brand goods, SM  the trademark symbol SM means unregistered service marks used to promote services, ® The Trademark Symbol ‘R’ surrounded by a circle for registered trademark.

RAGISTRATION Of TRADEMARK

In India, trademarks are registered online by the Controller General of Patents, Designs, and Trademarks also known as Office of the Registrar of Trademark which comes under Ministry of Commerce. Trademark is registered by following steps are:

TRADEMARK SEARCH

The First Step assist to research whether similar trademark available which is already registered or not, if there is founded similar trademark then it gives a fair picture regarding disqualified of registered trademark with same brand name but registration can be possible either make composition with brand name or change the brand name. But in case, not identify any similar trade name or brand name in the Trademark Registry India then can be go ahead toward second step.

FILING TRADEMARK RAGISTRATION

Filing Trademark Application form either at trademark office or online on official website ‘Controller General of Patents, Designs, Trademark’ in Indian, The government fees for trademark registration is Rs. 9000 per application per class for company. The government fees for trademark registration is Rs. 4500 per application per class for individual. Once, the application is filed registrar issue official receipt to know the status of trademark application online.

EXAMINATION

Once, the application is filed then it examined by examiner or registrar within one or two month examiner period. After examination application can be approved or conditional or put objection over the application. If there is condition or formality unfulfilled then condition to be fulfilled and in case of objection put over the application then respond to the objection within a month. As such response accept by the examiner then allow for further proceed that is publication of trademark or brand name on trademark journal.

TRADEMARK PUBLICATION

The purpose of publish trademark on trademark journal is to look if any objection arise against the trademark. If there is no opposition from four month from the date of publication then registration of trademark proceed toward registration.

RAGISTRATION CERTIFICATE

As registrar satisfied by all the formality, response, condition then registration certificate of trademark will be issued by the trademark office.

TRADEMARK RENEWAL

The Trademark can be renewed continually after every ten years; hence trademark or logo, or brand name can be protected continually.

EFFECT OF RAGISTERED TARDEMARK & NON-RAGISTERED TRADEMARK

RAGISTERED TRADEMARK

Exclusive Trademark Right: Owner has exclusive trademark right over his own brand of goods and services which prevent from use of forfeited or fraudulent and name of product and services by unauthorized person.

Protection Against Trademark infringement: No person shall use the registered trademark without the consent of the trademark owner, if it happen and any unauthorized person use the registered trademark then owner has right to suit filed against the unauthorized person and claim for damages

Duration of Registration: The minimum period of ten years after getting registration certificate of trademark then continually renewed is compulsory after ten year to protect brand name or trademark.

Use Of Registered Trademark Symbol: Owner can use the registered trademark symbol that is ‘R’ surrounding by a circle over his own brand name or trademark and let the people know that brand name is registered and they cannot use without seeking your permission.

EFFECT OF NON-RAGISTERED TRADEMARK

Designation of Trademark as TM   the trademark symbol TM means unregistered Trademark used to promote and brand goods. The owner of unregistered trademark can prevent unauthorised person from using an identical or deceptive similar trademark but the infringement must come under passing off infringement. For passing off infringement, it must fulfil three of important condition by claimant namely ‘Unregistered trademark has reputation itself, The Act of defendant amount to misrepresentation, the claimant has suffered from injury or heavy loss’. As the state of affair fall under passing-off claimant either obtain damages or account for profits under common law.

CIVIL AND CRIMINAL REMEDY

The two types of remedies are available to the owner or proprietor of the two marks against the unauthorized use of trademark by the infringer. Civil and criminal remedies are available under the Trademark Act, 1999. Civil proceeding initiated before the district court.

CIVIL REMEDIES:

Claimant can claim for Injunction against the use of trademark

Claimant obtain appropriate Damages

Claimant can ask for handing over of account and profit.

Appointment of a local commissioner by respective court to custody or sealing infringe material and accounts

CRIMINAL REMEDIES

Chapter Ⅻ of the Trademark Act, 1999 deal with offences, penalty, and procedures.

Section 103 and 104 provide imprisonment for a term not less than sixth month which may extent up to three years and fine not less than fifty thousand rupees which may extent up to two lakh rupees.

Section 27(1) states that no remedy shall available for infringement can be taken for unregistered trademark.

Section 27(2) there is no remedy available for infringement can be taken for unregistered trademark except passing off.

CONCLUSION

The Trademark Act,1999 is one of Intellectual right provide exclusive to owners over their trademark if trademark is registered under registry of trademark and many effects has registered and non-registered trademark but immense benefits can be taken by registered trademark.

Aishwarya Says:

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