"Freedom and Property Rights are inseparable. You can't have one without the other"- George Washington

Property creation, enjoyment, and accumulation have been fundamental pursuits in human existence. Among the four aims of life - Artha (prosperity/economic values), Kama (psychological values/love/aesthetic values), Dharma (ethical/moral values), and Moksha (spiritual liberation) - artha, which encompasses wealth and economic well-being, holds a central place as a prerequisite for sustaining material life.

The acquisition of property and the pursuit of economic security are essential for meeting one's basic needs and enabling the fulfilment of other life goals. Artha, the first among the four objectives, is a foundational requirement that facilitates the Realization of the subsequent aims of Kama, dharma, and ultimately, moksha. Property can be classified into two broad categories:

1. Tangible Property
2. Intangible Property

Tangible Property:

Tangible property refers to physical assets or objects that can be seen, touched, and have a material existence. These properties occupy physical space and have a concrete form. Examples of tangible property include:

1. Real estate
2. Personal property
3. Inventory
4. Cash and cash equivalents
5. Artwork, collectables, and other physical valuables

Intangible Property:

Intangible property, on the other hand, refers to non-physical assets that have no material form but hold value due to their intellectual or legal rights. These properties cannot be touched or physically measured but can be owned, controlled, and transferred. Examples of intangible property include:

1. Intellectual property
2. Goodwill & Reputation
3. Franchises and licenses
4. Contracts and agreements
5. Computer software and programming code
6. Financial assets

Scope
Intellectual Property Rights (IPR) encompasses a range of intangible assets and products of human creativity. It involves legal protections and exclusive rights given to creators, inventors and innovators for their intellectual achievements. The key areas under IPR include:

1. Patents: Patents safeguard inventions, which can be either products or processes that introduce a technical solution or method of accomplishing something. Inventors receive rights to stop others from producing, using, selling, or importing their inventions for a specified period, typically around 20 years.
    
2. Copyrights: Copyrights protect literary, artistic, and innovative works like books, music, paintings, photographs, films, computer programs, and architectural creations. Copyright holders possess rights to replicate, distribute, exhibit, perform the works publicly, and create derivative works based on their original pieces.
    
3. Trademarks: Trademarks safeguard signs or designs that distinguish the goods or services of one entity from those of others. They can include words, logos, slogans, or combinations and aid consumers in identifying the source or origin of products or services.
    
4. Industrial Designs: Industrial designs protect the aspects of an object, including its shape, pattern, or ornamentation. Protection of design pertains to enhancing the aesthetic appeal of products to attract consumers.
    
5. Geographical Indications (GIs): Geographical Indications signify goods that have their origins in a geographic area with their quality, reputation, or unique traits linked to that specific locale. GIs play a role in endorsing and safeguarding local items, like wines, agricultural produce, and handmade crafts.
    
6. Trade Secrets:
   Trade secrets are the confidential business information or knowledge that help a business achieve an edge over its competitors. For example, trade secrets can be formulas, manufacturing processes, customer lists, or some other great proprietary information. Additionally, the scope of IPR may encompass other forms of intellectual property, such as:
    
   • Plant Variety Rights: Legal protection for new plant varieties developed by plant breeding.
   • Semiconductor Chip Designs: Protection for the design architecture of integrated circuits and microchips.
   • Traditional Knowledge and Genetic Resources: Focusing on the protection of intellectual property rights related to indigenous communities' traditional knowledge and genetic resources.

The range of IPR evolves permanently with technological progress resulting in new inventions, novel industries, and altered economic situations. IPR is a system to motivate innovative behaviour and entrepreneurship while ensuring the balance between the rights of the creators and the public needs. Appropriate IPR safeguards represent a key factor that drives economic development, transfer of technology, and investment in research & development within various fields.

Intellectual property is often considered as a subset of intangible property, which comprises creations of the human mind, such as inventions, literary and artistic works, symbols, names, images, and designs used in commerce. Both tangible and intangible properties hold economic value and can be legally owned, transferred, or used as collateral. However, the nature of ownership, protection, and valuation methods differ between the two categories due to their distinct physical and legal characteristics.

Intellectual property refers to the Intangible acts of the human intellect that are converted into tangible forms and granted certain property rights known as Intellectual Property rights. These rights include Patents, Copyrights, Trademarks, Industrial designs, Geographical indications of goods, and Trade Secrets. Trademarks are a type of intellectual property commonly used in commerce.

As India continues to solidify its position as a major economic force, the protection and enforcement of trademark rights have become increasingly crucial for fostering innovation, safeguarding consumer interests, and promoting fair competition. Trademarks play a pivotal role in establishing brand identity, reputation, and consumer trust. They enable businesses to distinguish their offerings from those of others, thereby preventing consumer confusion and ensuring transparency in the marketplace. However, the rise of counterfeiting, infringement, and unauthorized use of trademarks has posed significant challenges, necessitating a robust legal framework and effective enforcement mechanisms.

In today's era of rapid technological growth and innovation, the preservation of intellectual property has become increasingly crucial. According to a report by the Organization for

Economic Co-operation and Development (OECD) and the European Union Intellectual Property Office (EUIPO), the global trade in counterfeit and pirated goods amounts to as much as 3.3% of world trade, or around $509 billion. This significant figure underscores the economic implications of counterfeiting, which not only undermines brand reputations but also results in substantial revenue losses for legitimate businesses and governments.

In India, the number of trademark infringement cases filed before various courts has been on the rise. This trend reflects the growing need for effective enforcement mechanisms to protect trademark rights and combat infringement activities.

The proliferation of e-commerce platforms has created new avenues for counterfeiters and infringers to operate. According to a report by the U.S. Department of Homeland Security, counterfeit products sold online pose a significant risk to consumer health and safety, as well as to intellectual property rights. The report highlighted the sale of counterfeit goods across various product categories, including luxury goods, electronics, and pharmaceuticals.

Trademark infringement and counterfeiting can severely damage brand reputations and erode consumer trust. A study by the International Trademark Association (INTA) found that 79% of consumers believe that buying counterfeit products is unethical, and 88% believe that it supports criminal activities. This highlights the importance of protecting trademarks to maintain consumer confidence and brand integrity.

Certain industries face heightened risks of trademark infringement and counterfeiting. For example, the pharmaceutical industry has been grappling with the issue of counterfeit drugs, which can pose serious health risks to consumers. Similarly, the fashion and luxury goods industry has been a prime target for counterfeiters, leading to significant revenue losses and reputational damage for legitimate brands.

What is a Trademark?

Trademark is the result of competitive trade practices. Selling a product by its name and its uniqueness is what every trader aspires to do. The changing business practices have also changed the idea and concept of the trademark. Thus, understanding the fundamental characteristics and the general purpose of a trademark is essential.

A trademark is a distinctive sign or symbol that identifies the source or origin of certain goods or services and distinguishes them from those of others. It serves as a valuable commercial asset and a crucial element of intellectual property rights. Trademarks can be traced back thousands of years to prehistoric times when cave paintings depicted the branding of livestock as a way to identify personal property and prevent theft.

Ancient Egyptian masonry from around 4000 BC showed quarry marks and stonemasons' signs indicating the source of the stone and the labourer, highlighting the early use of marks to certify origin and quality. As trade expanded in the ancient world, the practice of using graphic designs or marks to denote the origin and quality of goods became more widespread.

In the Middle Ages, trade guilds used specific marks, like hallmarks for gold purity, some of which are still in use today despite the dissolution of the guilds themselves. These ancient practices laid the foundation for the evolution of modern trademark systems.

In Ancient times, we do not have registered trademarks but in the modern era, protection is given to the trademark holder by registering his trademark. With the passage of time trademarks developed around the globe but different Countries have developed different criteria for granting IPR protection, on the basis of varying novelty, inventiveness, or distinctiveness standards for patents, trademarks, or industrial designs. This results into situations where an

IP asset is protected in one country but not in another, leading to disputes over its validity and enforceability across borders.

Definition of Trademark

A trademark is a visual element used as an identifier in the form of a word, device or label, which is used on goods to identify the product to the public.

Section 2(zb) of the Trademark Act, 1999 defines Trademark, as 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 a shape of goods, their packaging, and combination of colours."

Section 2(m) defines "mark" as a device, brand, heading, label, ticket, name, signature, word, letter, numerical, form of products, packaging, or combinations of colours or any combination thereof.

Reading together, we may conclude that the definition of Trademark is inclusive and not exhaustive. There could be various types of combinations of words, names, and letters to create a trademark.

Evolution of trademark under international law

With the passage of time trademarks developed around the globe but different Countries have developed different criteria for granting IPR protection, on the basis of varying novelty, inventiveness, or distinctiveness standards for patents, trademarks, or industrial designs. This results into situations where an IP asset is protected in one country but not in another, leading to disputes over its validity and enforceability across borders. For Example- a company that owns a registered trademark in one country may face challenges in enforcing its rights in another country where a different entity has registered a similar or identical mark. This can lead to costly legal battles, market confusion, and potential loss of brand equity.

This results in the enactment of various international Trademark Agreements. The roots to standardize and harmonize international trademark laws can be traced back to the 19th century, with the inception of the 1883 Paris Convention. This convention marked the first global initiative to streamline and bring uniformity to the protection of intellectual property rights, including trademarks.

At the international level, concerted efforts have been made to enhance the safeguarding of the interests for various stakeholders involved in the trademark, including consumers as well. A series of landmark agreements, ranging from the Paris Convention on Industrial Property to the Madrid Agreement, Madrid Protocol, and the Trademark Law Treaty, have placed significant emphasis on rationalizing and homogenizing the substantive and procedural aspects of trademark legislation.

These multilateral treaties and conventions have aimed to establish a more consistent and cohesive framework for trademark registration, examination, and enforcement across national borders. The overarching goal has been to enhance legal certainty, minimize conflicts, and ensure a harmonized approach to protecting the intrinsic value and integrity of trademarks, while simultaneously safeguarding the interests of all stakeholders, including businesses and the public at large, in the increasingly globalized marketplace.

The International agreements and treaties on trademarks include the Paris Convention, the Madrid Agreement and the Madrid Protocol, TRIPS, the Trademark Law Treaty, and the Singapore Treaty. Such treaties provide the legal framework to protect trademarks on the international community and country levels. The fundamental aims of these conventions are regarding:

1. The protection of trademark rights
2. The harmonization of the law
3. To harmonize the procedure of cross-border registration filing of trademarks

Below Is A Brief Description Of The Three Main International Treaties On Trademark

1. The Paris Convention for the Protection of Industrial Property:
   It is indeed the oldest major international treaty on intellectual property protection, having been adopted back in 1883. The Convention has undergone several revisions over time to keep pace with evolving needs and norms around IP protection.
   
   Significantly, the Paris Convention laid the groundwork for international regulation of trademarks for the first time in history. Before this landmark treaty, trademark protection was largely confined to national laws with limited recognition across borders. The Paris Convention established some key principles that became the foundation for an international trademark system, such as:
   1. National Treatment:
      The principle of national treatment under the Paris Convention is a key pillar of the international trademark system. It requires member countries to provide the same rights, privileges and legal protection for trademarks to nationals of other member countries as they provide to their citizens. When a foreign national from a member country seeks to register or protect a trademark in another member country, it cannot be treated less favourably than how that country treats its nationals.
      
      The same substantive rules, administrative procedures, and enforcement mechanisms for trademark registration, maintenance and protection must be applied equally to domestic and foreign applicants/owners. National treatment covers the entire life cycle of trademark rights - from initial application and prosecution to renewal, assignment, licensing and litigation. Foreign mark owners enjoy the same rights as locals.
       
   2. Right of priority:
      The right of priority under the Paris Convention is another foundational principle that facilitates the process of obtaining trademark protection internationally. The basic concept is that based on a first ("home") trademark application filed in one member country, the applicant can subsequently file corresponding applications in other member countries to claim the original filing date as the "priority date" within a specified period.
      
      Specifically, an applicant has 6 months from the home filing date to file applications in other member countries and claim priority based on the initial filing date. During these 6 months, any later filed trademark applications are treated as if they were filed on the same day as the earliest home filing. This priority period allows the applicant to first file at home and then extend filing to other countries while retaining that initial earlier filing date.
      
      The priority claim ensures the later applications are not prejudiced by any intervening applications or events occurring between the home filing and subsequent filings. The right of priority serves some important purposes - It gives applicants sufficient time to prepare and decide where else to pursue protection after the initial home filing. It determines which among conflicting applications in different countries priority over the others is based on the earliest effective filing date.
      
      It allows companies to extend protection to major export markets while relying on the original home filing date as the operative date. Overall, this priority system avoids last-minute rushed filings in multiple countries and provides applicants a timely advantage when seeking trademark protection across borders. It harmonizes filing dates for efficient management of global trademark portfolios.
       
   3. Common regulations:
      The Paris Convention laid down certain common regulations and minimum standards that member countries must follow concerning trademark registration and protection. It provided one of the earliest internationally accepted definitions of what constitutes a trademark. It specified certain signs that must be accepted for trademark registration by members like words, personal names, letters, numerals, devices, shapes of goods or packaging etc.
      
      It listed permissible grounds for refusing trademark registration such as lack of distinctiveness, being deceptive or contrary to morality/public order. It stipulated that initial registration and renewals must be for a term of at least 7 years, establishing a common minimum duration. It permitted members to make trademark registration dependent on actual use, allowing cancellation after a reasonable period of non-use. It required protection for well-known marks, even without registration, to prevent unauthorized use and registration by third parties.
      
      Through the Paris Convention, countries established this initial multilateral platform, which served as the starting point for subsequent treaties such as the Madrid System, which promoted and facilitated further international cooperation and harmonization of trademark laws. Paris Convention is the groundbreaking convention that makes it the milestone and precedent in the global protection of trademark regimes.
       
2. The Madrid Agreement and Protocol:
   The International Registration of Trademarks Regulations becomes more effective through the Madrid Agreement, which was adopted in 1891, and it becomes more efficient through the Protocol related to this Agreement, which was endorsed in 1989. Madrid agreement is comprised of Madrid Agreement (1891) and Madrid Protocol (1989), which provides a streamlined and centralized trademark filing procedure for obtaining multi-jurisdictional protection through a single international application.
   
   Instead of filing multiple national applications, the applicant can submit a single request to the World Intellectual Property Organization (WIPO) and state the countries in the registration application where protection is requested. However, the International application is subject to a condition that in the home or country of origin, trademark registration should exist. Madrid Agreement provides the preferable option of not having to ask for registration in different countries. A simplified registration process whereby renewals can be made via a single renewal request with a fee payment to WIPO, and not through each country.
   
   The main benefits that arise out of the Madrid agreement are simplified maintenance, lean administrative costs, smooth compliance and consistency in filing/renewal of the entities at the jurisdictions level. The Madrid System presents a quite practical, easy and economical strategy enabling the holders of trademarks to achieve and retain protection in many countries by making use of a one-outlet application for registration and renewal of trademarks. Today, over 120 countries are members, including the most influential economies of the planet, and therefore, through this way, enterprises can obtain significant benefits of global brand protection.
    
3. Trade-Related Aspects of Intellectual Property Rights ( TRIPS ):
   It was the first global agreement laying down minimum standards and norms for protecting various forms of intellectual property rights (IPRs) across all WTO member nations. It covered copyrights, trademarks, geographical indications, industrial designs, patents, and undisclosed information/trade secrets under a comprehensive IPR framework. For the first time, it directly linked IPR standards to global trade rules by making IPR protection an integral part of the multilateral trading system. Section 2 of Part II of the TRIPS Agreement, spanning from Articles 15 to 21, is entirely dedicated to laying down the specific standards for trademark protection that all WTO members must provide under the agreement.

TRIPS explicitly incorporates the principle provisions of the Paris Convention, including it's:

• National treatment provisions,
• Its priority rule, and
• Substantive protection.

It adds a most-favoured nation requirement, elaborates on the requirements for trademark protection, and extends the substantive rights of a member state. Before TRIPS, some countries had been giving local manufacturers a boost when they manufactured goods for the foreign trademark holders to display the local manufacturers' mark.

Article 15, of the TRIPS agreement, has the provision that any sign or set of signs which directly refers to the undertaking products and services from other undertakings shall be allowed for trademark registration, given that it is distinctive. The definition of signs, in general, the words, characters, digits, figurative elements, and colour combos, as well as any combination of these signs, must be acceptable for trademark sake. The term provided in

Article 16, ensures that the owner of the trademark has the exclusive right to prevent third parties from using signs similar to or even identical to those on products or services for which the trademark is registered. TRIPS Article 20 prohibits encumbering foreign marks in the way, although identification of the undertaking that produced the goods and services may be required. Members also enjoy a measure of flexibility. Article 17 permits 'limited 'exceptions, provided they 'take account of the legitimate interests of the owner of the trademark and the third parties'.

Evolution of Trademark Laws in India
Before 1940 there was no specific statutory legislation governing trademarks in India. The trademark regime was based entirely on principles of English common law that were followed in British India. In the absence of codified laws, Indian courts adjudicated trademark disputes by applying common law doctrines that were derived from English precedents. The key doctrine followed was that of 'passing off.

The Trademark Act of 1940 was the first statutory act of India. The 1940 Act laid down a comprehensive framework for obtaining trademark rights through registration with the trademark office. It specified the requirements, procedures and effects of registering trademarks. The Act permitted registration of trademarks for goods only, not for services. It covered different categories like product marks, certification marks, defensive marks etc.

There were provisions relating to Convention applications, assignments, licensing etc. The Trade and Merchandise Marks Act, of 1958 replaced the earlier Trade Marks Act, of 1940 as the governing legislation for trademarks in India. Like its predecessor, it continued with the statutory system of registering trademarks to confer rights on the owner. The broad framework and principles governing registration remained largely similar.

The Trade and Merchandise Marks Act, of 1958 replaced the Trade Marks Act, of 1940 as the governing legislation for trademarks in India at that time. The 1958 Act aimed to simplify and streamline the procedural aspects related to trademark registration and administration. It consolidated and refined the rules about filing, opposition, renewals, assignments, rectification etc. The 1958 Act, like the 1940 Act, did not negate or displace the common law rights over unregistered trademarks acquired through use and goodwill. Passing off actions for unregistered marks remained permissible based on common law principles developed by Indian courts over time

The Registration of trademarks continued to be limited to goods/products only. Service marks could not yet be registered under this statute. However, since there have been considerable changes in the trading and commercial practices due to globalization of trade and industry.

To keep pace with the changing trends of international level, a comprehensive law was required .Therefore, the Trademark Act was passed in 1999, which came into force with effect from 15th September, 2003. This Act repealed The Trade and Merchandise Marks Act 1958.This Act is Consists of 159 sections, XIII Chapters and one Schedule.

Objective of the Act:
The object of trade mark law is to provide legal protection of trade marks for goods and services and prevent fraudulent use of marks the unique feature of trademark which distinguishes it from other categories of IPRs via copyright, patent and design is that the trademarks are given legal protection not for a fixed term but for an indefinite term, provided other legal conditions also.

The Supreme Court in Dau Dayal v. State of Uttar Pradesh also explained the objective of Trademark Act 19996, in the following words:

"The object of trade mark law is to protect the rights of persons who manufacture and sell goods with distinct trade marks against invasion by other persons passing off their goods fraudulently and with counterfeit trademarks as those of the manufacturers. Normally, the remedy for such infringement will be by action in Civil Courts.''

Salient features of the Act
The Trademarks Act, 1999 is an important legislation governing trademark registration and protection in India.

Here are some of its salient features:

1. The Act provides a comprehensive definition of a trademark, which includes any unique mark, logo, symbol, word, phrase, or combination thereof that distinguishes the goods or services of one party from those of others.
2. Registration System: The Act establishes a registration system for trademarks. It provides for the filing of applications with the Registrar of Trademarks for the registration of trademarks. Once registered, the trademark owner receives exclusive rights to use the mark in connection with the specified goods or services.
3. Term of Trademark: A unique feature of trademark is its perpetual life. However, initially a trademark is registered for 10 years, but it can be periodically renewed and can be used for indefinite period, unless it is removed from register or prohibited by court order.
4. Protection of Well-Known Trademarks: The Act recognizes the concept of well-known trademarks. It offers protection to trademarks that are considered well known in India, regardless of whether they are registered or not. This provision prevents the unauthorized use of well-known marks and protects their reputation.
5. The Act allows for the classification of goods and services into different classes. Applicants can file trademark applications for specific classes of goods or services based on the international classification system.
6. The Act provides for the assignment and transmission of trademarks. Trademark owners have the right to assign or transfer their trademark ownership to another party, either with or without the underlying business.
7. The Act defines trademark infringement and provides remedies for infringement. It allows the trademark owner to take legal action against unauthorized use of their registered trademark and seek remedies such as injunctions, damages, and account of profits.
8. Trademark Renewal: The Act mandates the renewal of trademark registrations. Registered trademarks need to be periodically renewed to maintain their validity. The Act specifies the renewal period and the procedure for renewal.
9. Trademark Offices and Registry: The Act establishes trademark offices and a centralized registry for the filing, examination, and maintenance of trademark records. It provides for the appointment of trademark examiners and officials to facilitate the administration of the Act.
10. International Treaties and Conventions: The Act aligns with various international treaties and conventions related to trademarks. India is a signatory to international agreements such as the Paris Convention for the Protection of Industrial Property and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), and the Act incorporates provisions to comply with these agreements.
11. Extension of application of convention country to include countries, which are members of Group or Union of countries and inter-governmental organizations.
12. The Act includes provisions for offenses and penalties related to trademark violations. It prescribes punishments for offenses such as false trademark representation, falsifying the trademark registry, and applying false trademarks. It is a cognizable offence.

Conclusion
The development of the trademark law has been gradually inherent not only in India but across various countries, it reflects the significance of the requirements of Intellectual Property Protection. Certainly, trademark laws have grown from early-age trading systems right up to the complicated legal measures employed in this day and age that are intended to reduce challenges in commerce and difficulties posed by advancements in technology.

There is an evolving, global standard on trademark law and treaties. Key international agreements, such as the Paris Convention, Madrid System, and TRIPS Agreement, have led to harmonization of standards worldwide. The agreements have introduced basic principles like national treatment and rights of priority. These are the two major elements in international treaties that facilitate cross-border registration and enforcement of trademarks.

The transition in India, where the country has moved from common law principles, embodies inclusiveness that is borne out of global standards and addresses the challenges that are locally nativist and specific in our own orbit. At this juncture, we are central to the physical protection of common law trademarks, rights of well-known names, and the launch of enforcement mechanisms.

Given the ever-evolving nature of commerce, which is spilling over into the digital space, trademark laws could experience unprecedented challenges as well. Current laws are evident only in existence to address concerns related to online infringement or counterfeiting, the increasing challenges such as domain disputes, those extending rights via well-known non-traditional and challenging registration grounds for geographical or consumer protection; thus, increased movement to revisit or elaborate upon these areas as being led by national legislation, pre-empting further transformations globally.

Trademark laws are increasingly subject to change and remain critical in fostering fair competition, protecting consumer interests, and encouraging brand development and innovation. As these systems continue to act as drivers of economic growth in an information economy, the importance of protecting trademarks is expected to rise in the future and lawmakers will continue to refine issues confronting them today.

References:

1. Trends in Trade in Counterfeit and Pirated Goods available at, https://www.oecd.org/trade
2. Trends in Trade in Counterfeit and Pirated Goods available at, https://www.euipo.europa.eu/en/publications/illicit-trade-global-trade-in-fakes-a-worrying-threat
3. AIR 1959, 433
4. AIR 1959 SC 433
5. Paris Convention for the Protection of Industrial Property (1883)
6. Madrid Agreement Concerning the International Registration of Marks (1891)
7. Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement (1994)
8. Indian Trademarks Act, 1999
9. "International Trademark Law and Practice" by Ethan Horwitz