Intellectual property rights provide for the rights to the owners of
intellectual properties to preserve their ownership and to sustain and receive
the benefits of their creativity and genius. Trademark is one of the most
prominent intellectual property rights. A trademark is a tool that helps a
company distinguish itself from other brands to beat the competition. A brand is
not necessarily a trademark, but a trademark is always a brand.
A trademark is a
name, word, or symbol that distinguishes goods from those of other businesses.
Marketing goods or services by procedure becomes considerably easier with a
trademark because product recognition is secured and made easy. The owner can
prevent a competitor from using his mark or symbol.
Trademark law in India
An Indian Trademark Law was enforced in the 1940s. This law was enforced because
of the continuous infringement of the registered and non-registered trademarks.
As trade and commerce grew rapidly after the trademark legislation was
implemented, demand for trademark protection skyrocketed.
The Trademark and
Merchandise Act, 1958 replaced the old Trademark law. It provided better
protection of trademarks and prevented misuse or fraudulent use of marks on
merchandise. This act as well was replaced with the Trademark Act, 1999, by the
government of India following the TRIPS (Trade-related Aspectsof Intellectual
Property Rights) obligation imposed by the World Trade Organization. The
Trademark Act's goal is to protect trademark users by directing property
conditions and providing legal remedies for trademark rights enforcement.
Trademark identifies the owner of the product. Trademark piracy is defined as
the use of a trademark for commercial gain through unauthorised or illegal
means. If a registered trademark is infringed, the owner of the registered
trademark can file a case, whereas an unregistered trademark's only alternative
is passing off.
Anyone claiming to be the owner of a trademark or claiming to
have to use it in the future may submit an application in writing to the
competent registrar in an authorised manner. The application must include the
name of the goods, mark, and services, the class of goods and services in which
it falls, the applicant's name and address, and the mark's term of use. A person
here refers to a group of firms, a partnership firm, a corporation, a trust, a
state government, or the federal government.
Grounds for refusal of a Trademark
Section 9 of the Act defines the absolute grounds for the refusal of
registration of the trademark. Trademarks that are devoid of distinguishing
qualities or consist solely of marks or signals that might be used in commerce
to represent the kind, fine, quantity, alleged grounds, values, or geographical
origin, may be rejected.
A creation of time of things or the rendering of offers,
or various features of goods or offerings, consisting entirely of signs or
signals that have become common in today's language. That trademark is not
eligible for registration. Unless it is proven that the mark has acquired a new
character as a result of use before the application date.
It further provides
that a mark shall not be registered as a trademark if:
- It deceives or confuses the people.
- There is something that can harm religious sensitivity.
- It is indecent or scandalous in nature
- Its use is forbidden. It states that a trademark cannot be registered if
it only contains (a) the shape of products that form the nature of goods,
(b) the shape of goods that are required to achieve a technical result, or
(c) the shape of goods that gives substantial value to goods.
- It is prohibited under the Emblems and Names (Prevention of Improper
Use) Act. 1950.
Test of similarity
If two marks appear to be deceptively similar, the key qualities of both must be
considered. They should not be placed side by side to see if there are any
design discrepancies and if they have the same personality to avoid one design
being mistaken for the other. It would be sufficient if the challenged mark is
so similar to the registered mark that a person who normally deals with one
would accept the other if presented to him.
Apart from structural, visual, and
phonetic similarity or dissimilarity, the question must also be considered in
terms of human intelligence and incomplete collecting. The question of his
impressions is viewed as an entire third.
"It is general knowledge that 'bidis' are utilised by those belonging to the
impoverished and uneducated or semi-literate class," the court said in Mohd.
Iqbal v. Mohd. Wasim.
Their level of expertise is limited. It is unrealistic to
expect children to comprehend and comprehend the subtle differences between the
two labels that can be found by comparing the two labels. Given the foregoing,
the two labels appear to have a misleading resemblance."
The Act's Section 11 lays forth the relative grounds for a trademark's refusal
to be registered. A trademark cannot be registered if there is a likelihood of
confusion due to (I) its identity with an earlier brand and resemblance of goods
or services, or (II) its similarity to an earlier trademark and similarity of
goods. It also states that a trademark that is identical or similar to an
earlier brand cannot be registered.
Also, if, or to the extent, the earlier
trademark is well recognised in India, it must be registered for goods and
services that are not identical to those for which an earlier trademark is
registered in the name of a different proprietor. It further states that a
trademark cannot be registered if or to the extent that its use in India is
likely to be prohibited by law.
Intellectual property rights are a new yet booming field of law in today's time.
Trademark is one of the most essential intellectual property rights for a
business. It is essential to build their brand, their brand value and their
image in the market. People need to know the grounds on which a trademark can be
refused. In order to make sure that such grounds for non-refusal are satisfied,
which makes it faster for the business to set up and commence their business and
function as an independent brand in the market.
Award Winning Article Is Written By: Mr.Kishan Dutt Kalaskar
Authentication No: MA40595205354-27-0522