Sunday, 30 December 2012

notes on Trade Mark Protection in India

What is a trade mark
Trade mark can be defined as the formal recognition of the brand of a product or service which distinguishes one manufacturer from others and accords uniqueness to the goods and services.
Origin of the trade marks
The process of assigning names and emblems on the products has been a practice long in use. For example Indus Valley Civilization reveals that the manufacturers were induced to affix symbols to their goods or cargo to identify the origin and to levy the tax thereon. This practice continued to keep its sway even in the age of industrial revolution and unleashed the concept of trademark protection.
Features of trademark
·         It is an intellectual property right of the manufacturer
·         It can be registered
·         It is protected from the infringement through separate act
Need for protecting trademarks
·         Unscrupulous traders often deceive the customers by dumping the counterfeit goods and deceptive packeges of well known products.
·         Trademark infringement depreciates the brand image of genuine manufacturers.
·         Global competition in trade made it obligatory to globalize the brands and to insulate them from external infringement
Development of  the Trademark protection law in India
The British Common Law has sown the seeds of trademarks protection in India which has been conglomerated into Trade and Merchandise Marks act 1957. This law was criticized to be too nationalistic and ignored the interests of foreign trademarks. Ultimately, India being the founder member of WTO was left with no option but to change its law in order to meet the requirements of TRIPs. Therefore the erstwhile act 1957 has been replaced with Trademarks act 1999, which has become operational only from the year 2003.
Important features of Trademarks act 1999
·         Indian government has established the office of the registrar of Trademarks at Mumbai with zonal offices at Ahmadabad, Bangalore, Chennai and Kolkatha to enable the process of registration of trademarks
·         Surnames, laudatory words and descriptive words are not allowed to be registered as the trademarks. However the surname which is completely unique and prefixed with other words can be registered as the trade mark.
·         The words and emblems reserved for the disposal of government under the names and emblems ( prevention of improper use ) act 1951 cannot be registered as the trademarks
·         The tenure of protecting the registered trademark has been extended from seven years to ten years
·         Foreign trademarks were also allowed to be registered in Indian jurisdiction.
·         Well known trademarks are protected within the ambit of Indian frontiers irrespective of its registration. 
·         Service providers like Bankers, education institutions and Insurance entities are also allowed to obtain trademarks, which were not available in the earlier act.
·         Specific certificates missed by the manufacturer or service provider are also eligible for trademark.
·         All the goods and services are classified into 34 classes, such that, the similar goods of dissimilar classes can not have uniform trademark.
·         It is possible to have collective trademark for different goods, if , they are manufactured by a single entity or person.
·         The definition of trademark has been enhanced to include the brand name, package and the tagline.
·         The new law also enables the registration of geographical trademarks
Penalties and punishments for the infringement of trademarks
Any violation of the provisions of the trademarks act 1999 atrats the penalty ranging from Rs 50000 to Rs 200000 or impresinment from 6 moths to 3 years or both.