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Trademark Law in India

Trademark Law in India :-

 The Indian law of trademarks is enshrined the new Trade Marks Act, 1999 came into force with effect from September 15, 2003. The old Trade and Merchandise Marks Act, 1958 was repealed at the same time. The new Trademarks Act of 1999 is in line with the WTO recommendations and is in conformity with the TRIPS Agreement to which India is a signatory.


India has declared certain countries as convention countries, which afford to citizens of India similar privileges as granted to its own citizens. A person or company from a convention country, may within six months of making an application in the home country, apply for registration of the trademark in India. If such a trademark is accepted for registration, such foreign national will be deemed to have registered his or her trademark in India, from the same date on which he or she made application in the home country.

Trademark a fundamental concept :-

A trademark is one of the elements of Intellectual Property Right and is represented by the symbol ™ or ®. The mark is the distinctive sign or indicator of some kind which is used by an individual, business organization or other legal entity to identify uniquely the source of its products and/or services to consumers, and to distinguish its products or services from those of other entities. A trademark is a type of intellectual property, and typically a name, word, phrase, logo, symbol, design, image, or a combination of these elements. There is also a range of non-conventional trademarks comprising marks which do not fall into these standard categories.

The term trademark is also used informally to refer to any distinguishing attribute by which an individual is readily identified, such as the well known characteristics of celebrities. When a trademark is used in relation to services rather than products, it may sometimes be called a service mark.

Trademark description :-

Description of the characteristics of goods, including their quality, quantity, and fitness for the purpose for which they are required. Under the Trade Mark Act , making a false trade description is an offence. The offence may be committed by applying a false trade description directly, such as on a label attached to goods; indirectly, such as by deliberately concealing faults in goods; or in an advertisement. Misleading statements are also illegal.

Function of a trademark :-

Under modern business condition a trade mark performs four functions:

* It identifies the goods / or services and its origin.
* It guarantees its unchanged quality
* It advertises the goods/services
* It creates an image for the goods/ services.

How to select a trademark :-

* An easy to speak, spell and remember word.
* The best trade marks are invented words or coined words.
* Geographical name, no one has monopoly right on it. Selecting of Trademark which belongs to certain geographical name, should be avoided.
* Avoid adopting laudatory word or words that describe the quality of goods (such as best, perfect, super etc)
* It is advisable to conduct a market survey and a search at Trademark office to ascertain if same/similar mark is used in market.

The types of trademarks that can be registered :-

Under the Indian trademark law the following are the types of trademarks that can be registered:

* Product trademarks: are those that are affixed to identify goods.
* Service trademarks: are used to identify the services of an entity, such as the trademark for a broadcasting service, retails outlet, etc. They are used in advertising for services.
* Certification trademarks: are those that are capable of distinguishing the goods or services in connection with which it is used in the course of trade and which are certified by the proprietor with regard to their origin, material, the method of manufacture, the quality or other specific features
* Collective trademarks: are registered in the name of groups, associations or other organizations for the use of members of the group in their commercial activities to indicate their membership of the group.

Trademark registration in India :-

Trademark is a mark used in relation to goods or services, to indicate a connection in the course of trade, between the goods or services and some person having the right as proprietor to use the mark.

Trademark is a mark used in relation to goods or services, to indicate a connection in the course of trade, between the goods or services and some person having the right as proprietor to use the mark.

The marks associated with goods, acquires Reputation and Good Will. Before the enactment of the Trade Marks Law in India, the Trade Marks used to be called common law marks. The owner of a common law mark has to protect his mark against the acts of infringement under passing off, by initiating common law proceedings. The Trade Marks law came up with a system of registration of Trade Marks which gave statutory recognition to the proprietor of the trade mark and defined the rights which are conferred by such registration and prescribed remedies in respect of infringement of those rights.

For the purpose of registration, a mark chosen should be capable of distinguishing goods or services of one person from those of the others. And it should not be deceptively similar to an existing mark of another person and not the one expressly prohibited under the Act.

The marks devoid of any distinctive character, or which are only indicative of the kind, quality, quantity, purpose, value or geographical origin of the goods, or which are marks already in vogue in the trade due to their customary use may not be registered. All marks used in the trade are not registerable. The Trade Mark law does not provide for the Registration of all marks used in trade and business. Only those Marks which satisfy certain requirements are registrable. Therefore a mark which satisfies the prescribed requirements could be registered. 

Requirements of registration :-

The requirements that a mark should satisfy are as follows:
1. The mark should be capable of being represented graphically.
2. The mark should be capable of distinguishing the goods or services of one from those of others.
3. The mark must be used in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and services.

Trademark Logo :-

Logo play a major role in marketing and brand recognition. Trademark logo is an aspect of a company commercial brand, which is used for the recognition, trust, admiration, and loyalty. The logo tailor is one which designs the font, shape, colour, and images of the graphical representation. These logos are generally different in size shape, and structure which help the common person to identify the organization or non-commercial entities. Trademark logo registration will prevent third parties from using, without consent, similar logo for similar services and goods as those protected by registering your logo in India.

Duration of Trademark :-

Term of registration of a trademark is ten years, which may be renewed for a further period of ten years on payment of prescribed renewal fees.

Non-user of a registered trademark for a continuous period of five years is a ground for cancellation of registration of such trademark at the behest of any aggrieved party. 

BENEFITS OF TRADEMARK REGISTRATION in India :-

The Registration of a Trade Mark confers upon the owner, the exclusive right to the use of the Registered Trade Mark and indicates so by using the symbol (R) in relation to the goods or services in respect of which the mark is registered and seek the relief of infringement in appropriate courts in the country.
The Registered Proprietor of a trade mark can stop other traders from unlawfully using his Trade Mark.

By registering a Trademark, the owner of the Trademark protects the goodwill of the business. Hence, the Trademark contributes to the commercial value of the goods or services to which it is applied, and increases the marketability.
The registered owner of a Trademark receives the presumptive right of the Trademark owner to use the Trademark and can indicate it by using the Trademark symbol ™ or ® in relation of those goods and services for which the owner has registered the Trademark.

The registered owner of a Trademark can sue other traders for recovery of profits, damages and costs in case of Trademark infringement. Trademark provides the guarantee for the unchanged quality and helps in creating and advertising the goods and services in public. It serves as a constructive notice in general public about the ownership claim of the Trademark. Registration of Trademark in India can be used as a basis of registration of Trademark in other countries. Thus, so it's preferable to have the mark or the punch line of the company to get it registered to be protected from any misuse.

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