Trade Mark

A trademark is a word, phrase, symbol design, or combination of words, phrases, symbols, or designs used in the course of trade that identifies and distinguishes the source of the goods or services of one enterprise from others.

• Section 2(1)(zb) trade mark means a mark capable of being represented graphically and capable of distinguishing the goods or services of one person from others and may include the shape of goods, their packaging, and a combination of colors.
   
• Section 2(1)(m) defines "Mark" includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging, or combination of colors or any combination.

This helps consumers identify and purchase a product or service because its nature and quality, indicated by its unique trademark, meet their needs. A trademark protects the owner of the mark by ensuring the exclusive right to use it or to authorize another to use the same in return for payment. Trademarks promote initiative and enterprise worldwide by rewarding the owners of trademarks with recognition and financial profit.

Trademark protection also hinders the efforts of unfair competitors, such as counterfeiters, to use similar distinctive signs to market inferior or different products or services. This enables people with skill and enterprise to produce and market goods and services in the fairest possible conditions, facilitating international trade.

Functions:

• It identifies the goods of one trader and distinguishes them from goods by others.
• It signifies that all goods bearing a particular trademark come from a single source.
• It signifies that all goods bearing a trademark are of an equal level of source.
• It acts as a prime instrument in advertisement and selling goods.

Objective:

• It protects the public from confusion and deception by identifying the source or origin of a particular product as distinguished from other similar products.
• It protects the trademark owner's trade and business as well as the goodwill that is attached to his trademark.

Historical
In India, the first legislation of the trademark was the Indian Merchandise Marks Act, 1889. This Act was followed by the Trade Marks Act 1940, which introduced the system of registration of trademarks and provided statutory protection to registered trademarks. Indian Merchandise Marks Act, 1889 was repealed after the adoption of the Trade and Merchandise Marks Act, 1958.

The 1958 Act did well for four decade. However, a need was felt to make a comprehensive review of the 1958 Act in view commercial of the developments in trading and practices, increasing globalization of trade and industry, the need to encourage investment flows and transfer of technology, the need for simplification and harmonization of trademark management systems and to give effect to important judicial decisions. Further, India became a Party to the TRIPs Agreement. Accordingly, the Trade Marks Act, 1999 was adopted which came into force on September 15, 2003.

The Trade Marks Act, 1999 has been enacted to amend and consolidate the law relating to trademarks, to provide for registration and better protection of trademarks for goods and services, and the prevent the use of fraudulent marks. The Trade Marks Act, 1999 is in harmony with two major international treaties, The Paris Convention and the TRIPS Agreement, to both of which India is a signatory.

Kinds of Marks:

1. Device: A device mark is a unique design, symbol, emblem, or graphic representation used to identify a product, brand, or organization.
2. Heading: A heading mark is a textual element used to categorize or group certain goods or services under a specific trademark.
3. Label: A label mark is a trademark affixed to a product or its packaging to indicate ownership, origin, quality, or other attributes.
4. Ticket: A ticket mark is a type of mark used to identify goods or services, often in the form of a token or voucher.
5. Name: A name mark is a trademark that consists of words, letters, or a combination of both, used to identify a product, brand, or company.
6. Signature: A signature mark is a unique representation of a person's name or identity, often used as a trademark to signify authenticity or endorsement.
7. Word, Letter, and Numeral: A word mark consists solely of words, letters, or numbers, used to identify and distinguish goods or services.
8. Shape of Goods: This refers to trademarks that consist of the shape or configuration of a product or its packaging, which distinguishes it from others in the marketplace.
9. Packaging: Packaging marks refer to trademarks affixed to the packaging of goods, which may include logos, labels, or other identifying elements.
10. Combination Marks: This refers to trademarks that incorporate a combination of the above elements, such as a logo that includes both words and a design element.

Types of Trademarks:

1. Collective Trademark – A collective mark is a type of trademark that distinguishes the goods or services of members of an association from those of non-members. It is used by multiple entities that are members of a group or organization. For instance, the Red Cross uses this type of labeling to distinguish its members and services from those of other groups with a similar mission. Additionally, it prevents others from using their brand because they already have a solid international reputation.
    
2. Well-Known Trademark – A well-known trademark is a mark that's widely recognized by a large portion of the public who use those goods or services. It's so well-known that if the mark is used with different goods or services, people might think there's a connection between those goods or services and the owner of the trademark. This concept is included in the Trade Marks Act, 1999, to protect famous trademarks from being used in a way that might confuse consumers into thinking there's a link between unrelated goods or services and the trademark owner.
    
3. Certification Trademark - A certification trademark is like a stamp of approval given by an organization to show that certain goods or services meet specific standards or criteria in respect of origin, material, mode of manufacture of goods or performance of services, quality, accuracy or other characteristics from goods or services. It's different from regular trademarks because it doesn't belong to any single company or person; instead, it's owned by an organization that sets the standards. The "duty of neutrality" prohibits these certification bodies from awarding this mark for their personal purposes, adding a degree of protection. Example: The "ISO 9001" certification mark for quality management systems.
    
4. Service Marks - Although it resembles a product mark, a service mark is intended to identify a service as opposed to a product. The primary function of the service mark is to set its owners apart from those of other services. Examples are Hilton Hotels, Emirates Airline, and McDonald's for fast-food restaurant services.
    
5. Trade Names - Trade names are utilized to identify a business as a whole as opposed to highlighting a particular service or commodity. Multinational firms, which host several trademarks under their trade name, are particularly prone to this. Example, Nestle, a trade brand holding numerous trademarks, including Maggie.
    
6. Sound Mark - A sound mark is a noise that can be connected to a good or service coming from a specific vendor. People must be able to quickly and easily recognize the service, or product, or show that the sound stands for it to be registered as a sound mark. Sound logos, sometimes known as audio reminders, are most frequently heard at the start or finish of commercials. Example: The Intel jingles.
    
7. Smell Marks - A smell mark, also known as a scent mark or olfactory mark, is a type of trademark that seeks to protect a specific smell or fragrance associated with a product or service. Smell marks aim to protect distinctive and recognizable scents. A smell mark must be capable of distinguishing the goods or services of one company from those of others in the marketplace. One of the biggest challenges with smell marks is representing the scent clearly and unambiguously.
    
8. Taste Marks - A taste mark, also known as a flavor mark or gustatory mark, is a type of trademark that seeks to protect a specific taste or flavor associated with a product or service. A taste mark must be distinctive and capable of distinguishing the goods or services of one company from others in the marketplace. One of the significant challenges with taste marks is unambiguously representing the flavor.
    
9. Moving Image - A moving image trademark is a type of trademark that involves an animated or dynamic visual representation. It could be an animated logo, symbol, or any other moving graphic element that serves to identify and distinguish the goods or services of one entity from those of others.
    
10. Holograms - Hologram trademarks involve the use of holographic technology to create unique visual representations that identify and distinguish goods or services. These trademarks typically utilize three-dimensional imagery to convey brand identity and product authenticity.
     
11. Gestures - Gestures, also known as motion or movement marks, involve specific or unique hand and body signals, poses, or movements associated with a particular brand. These gestures are used to identify and distinguish the goods or services.
     
12. Three-Dimensional Trade Marks - Three-dimensional trademarks, also referred to as 3D trademarks, involve the use of three-dimensional shapes, configurations, or designs to identify and distinguish goods or services. Three-dimensional trademarks represent tangible objects or structures and are registered to protect the shape or appearance of the product or its packaging.
     
13. Word Mark - A word mark consists of words, letters, or numerals without any stylization or design elements. It is the simplest form of trademark and typically represents the name of a product, service, or company. Example: "Apple".
     
14. Device Mark - A device mark includes graphical elements, symbols, logos, or designs, which can be registered as a trademark to identify the source of goods or services. Example: Apple logo, which consists of a bitten apple.
     
15. Shape Mark - A shape mark is a three-dimensional configuration of goods or packaging that distinguishes the goods or services of one provider from those of others. Example: The Coca-Cola bottle shape.
16. Color Marks - Color marks consist of specific colors or combinations of colors used to distinguish goods or services. To be registrable, color marks must be capable of distinguishing the goods or services and should not be essential to the function of the goods. Example: Tiffany Blue (Robin's Egg Blue).