What is a Trademark?
Updated: Mar 21
Corporate firms around the globe have been consistently outstanding with their fellow competitor entities with watermarks and logos until the market surged astoundingly. Legal systems and businesses needed an absolute distinction in terms of their fine plan and design along with offered services and products.
Exordium of Trademark
Trademark defined under Section 2 (zb) of the Trade Marks Act, 1999 as:
"Trademark 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 shape of goods, their packaging and combination of colors."
TRIPS Agreement (International agreement between the member nations worldwide regarding intellectual property rights) for protection of trademarks comprises legal protection to dissimilar trademarks, recognition of service marks, dynamic renewal of registration, abolition of compulsory licensing of trademarks. The statute law of trademarks in India was governed by the Trade and Merchandise Marks Act 1958. This Act was replaced by the Trade Marks Act, 1999. This part on Trademarks is based on the new Act of 1999.
The following Act of 1999 with ensuing amendments comply with TRIPS and furthermore lies in conformity of internationally accepted standards of practices and laws.
Trademarking a brand name keeps others from utilizing an organization’s or person's items or administrations without their consent.
Trademark is highly preferable in shielding your brand presence and uniqueness as it will inhibit growth of any other business trying to impersonate corporate methodologies especially in cases of similar services/products manufactured.
Trademarks can be bought and sold. For instance, Nike purchased the instantly recognizable Swoosh logo in 1971 from a graphic arts student for a one-time price of $35, Investopedia states.
Trademarks are additionally utilized as a powerful method to advertise brand names.
Truth be told, the force of branding in business is basic and can fill volumes, and the utilization of brands in promoting and advertising is incredible.
Trademark : A Global Approach
Trademarks help give special recognition to the ownership of a brand. It can be a symbol, phrase or a word that lawfully distinguishes the product/service. According to the World Intellectual Property Organization, Indian craftsmen used to engrave their signatures on their artistic creations before exporting them to foreign lands.
The purpose of a trademark is to make a consumer believe in the goods/services of the enterprise, not known to him, being accountable for the genuineness and authenticity of the same.
Nearly all the nationalities round the globe provide their industries with trademark registration. However, in the countries where trademark was a conventional approach, trademark registration does not give the owner the ultimate assurance. Rather, the first user of a particular trademark gets the priority in a trademark conflict due to acquisition by use. The United States of America, the Philippines, Indonesia and all countries with systems of law on the traditional British model (Hong Kong, India, Singapore, etc.) have taken the same approach into consideration.
Functionalities and Dynamics of Trademark
The source depiction and additionally recognizing capacity of the trademark is the reason for its legitimate assurance.
However the brand name does, obviously, have different capacities: as of now referenced, customers can for the most part depend on the predictable nature of the merchandise offered under the trademark.
This is alluded to as the Quality function or the Guarantee function.
Trademarks are not only used for marking goods under ownership of a specific enterprise but also efficiently used in advertising.
Consequently, the trademark by its acquired reputation, becomes a valuable asset to the owner who can further license or franchise it.
Thus, a trademark not conforming to its ability to legally differentiate the goods/services for a firm, but also can be of economic importance that does not depend on the trademark laws but on the commercial use of it by the enterprise.
Trademark Your Brand
Trademark registration can be done by applying under the Trademark Registrar under whose jurisdiction the applicant’s business firm falls. However, it is very necessary to ensure that the applying firm’s trademark does not resemble the already registered trademarks or prohibited ones.
Application for Trademark may be made on FORM TM-1 with the nominal fee requirements at one of the following Trade Mark Registry Offices located at Delhi, Mumbai, Kolkata, Chennai and Ahmedabad.
After being successfully examined on the set criterion without any oppositions, certificate of registration is issued. In situations of otherwise, an applicant can appeal to the Intellectual Property Appellate Board which is an administrative tribunal.
Infringements : Safeguarding Trademarks
Use of an already registered trademark on goods other than those arising out of ownership of that particular trademark is an act of infringement. Any third party indulged in selling goods/services under a lawfully claimed trademark is liable to a punishment for a time period of 3 months to 6 months followed by a hefty fine of INR 50,000 which can be extended to INR 2,00,000.
When we take protection of a trademark into consideration, it not only confines to words, phrases or any symbols but also with other factors like packaging and assigned color code. Trademarks make it feasible for consumers to instantly rule out the source of a given good. For example, rather than dedicating time to fine print of cola cans, consumers can look for the Coca-Cola trademark. Instead of asking a store clerk who made a certain pair of sneakers, consumers can look for specific symbols, such as a swoosh or a unique pattern of stripes.
By making goods easier to identify, trademarks also give manufacturers an estimate to invest in the quality of their goods.
If a consumer tries a mainstream brand and finds a quality deficit, it will be easy for the consumer to avoid the same product for future use and will rather switch to another brand.
Trademark laws furthers these goals by regulating the proper use of trademarks.
Chosen trademark, needless to say, falls within the concept of being arbitrary, suggestive, descriptive and generic.
However, trademarks are given their respective distinctiveness and degree of legal protection. To further illustrate, the famous clothing brand Mango does not resemble its underlying product/services and hence requires a higher degree of legal protection as they fall under arbitrary trademark category.
Similarly, trademarks are provided with their distinctiveness and legal shielding as per convenience of the category they fall in, be it descriptive or suggestive.
Generic names are not backed by trademark laws as it might give too much edge to a set of competitors over others.
Stance of Government of India
Indian government not only adheres to stern regulation for Trade Marks but also assists in infringement and passing off in response to any and all sorts of violations done against the goodwill of a registered trademark.
Section 135 of the Trade Marks Act acknowledges both infringement and passing off of trademarks.
As stated by Mondaq, The Judicial Bar of India has been proactive in the insurance of brand names, and it has broadened the assurance under the trademark laws to Domain Names as shown in milestone instances of Tata Sons Ltd. vs. Manu Kosuri and Ors, [90 (2001) DLT 659] and Yahoo Inc. vs. Akash Arora [1999 PTC 201].
Trademarks not only provide legal guardianship to big corporate firms and enterprises but also offer a safe ground for startups to protect the uniqueness to their brand. Trademarks make it easy for customers to locate your brand in the market and serves as an outstanding communication tool garnering more customer base. Businesses can build up their digital presence to no limits with the help of their trademarks. Apart from proving itself as a core asset to the company, successful entrepreneurs can expand their business from one field to another without concerning the established brand value. Such expansion only adds more and more value to the trademark. Trademark is a critical aspect for your brand, defining your reputation and recognition and at the same provides your brand a distinctiveness and assured legal protection.
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