8.1 8.2 8.3 8.4 8.5 8.6 8.7 8.8 8.9 8.10 8.11 8.12 8.13 Introduction Objectives
Trade Mark Law in India
What is a Trade Mark? A good Trade Mark Functions of Trade Mark Registration of Trade Mark What kind of Trade Marks can be Registered? Trade Marks not Registerable Exploiting Trade Mark Infringement Offences and Penalties Indian Trade Mark Act, 1999: Salient Features Summary Answers and Hints to SAQs
A trade mark is a visual symbol that distinguishes the goods or services of one enterprise from those of the competitors. A reference to goods will imply services also, unless the context prohibits it. Trade Marks are at the centre of global business today. They are the major source of product differentiation and non-price competition in a modern, market driven economy. Consumers come to associate certain value in terms of performance, durability, price, after-sales service etc in the goods sold under specific brands, which may be among the greatest assets of the enterprise. In the language of the law, brand names are known as trade marks. Several products, of the same category or of different categories, can be marketed under one brand name. Recently, non-visual signs have made a strong claim for recognition as trade marks. Smell and sound signs fall under such category though they are not yet recognised in India. Several broadcasting organisations and film producers have specific signature tunes to identify their programmes. The concept of identifying the source of manufacture by a mark is an ancient one. Signatures of craftsmen have been found engraved on goods sent to Iran from India some 3000 years ago! But trade mark gained importance after the industrial revolution when large-scale production and distribution of goods all over the world became possible and publicity through print and audio-visual media became necessary. The use of modern trade mark as a distinctive sign to indicate the origin or source of the product, carrying with it an association of high quality, goes back to the eighteenth century England, as in the case of cutlery trade. The real boost to trade mark came with Unilever. It marketed its soap under the brand Sunlight, emphasising not the product as such but the brightness that its use will bring to the clothes cleaned with it. The similarity of the products in the same market has necessitated the marking of goods by a symbol, which could distinguish one’s products from similar goods made by others. Trade Marks play a highly complex role in market driven economies, operating in the context of rapid integration of world economy. Through advertisement and other strategies, large market shares are captured by a few brands leading to concentration of market power in a few hands. If care is not exercised, a developing country may find itself flooded with foreign brands, unaccompanied by any flow of technology and 97
Awareness Course on Intellectual Property Rights
building up of national capabilities. Of course, indigenous brands are exposed to severe and unequal competition in which they have to prove themselves. In 1940 the then British Government of India passed the Trade Marks Act for uniform and systematic registration of trade marks in India, which came into force on June 1, 1942. The Trade and Merchandise Marks Act, 1958, which came into effect from November 25, 1959, replaced it. It became necessary to effect changes in the trade mark law as India joined WTO as an original member in 1995 and it was obligatory to bring the Indian law in consonance with TRIPS. Hence new Trade Mark Act, 1999, repealed the old Act. The Act of 1999 makes important departures from the Act of 1958 in two important respects: • • Shape of goods is recognised as a trade mark; and Trade Marks are now granted for services also, besides goods.
Goods is defined as anything which is the subject of trade or manufacture. Service means service of...