Imperial Journal of Interdisciplinary Research (IJIR) Vol-2, Issue-11, 2016 ISSN: 2454-1362, http://www.onlinejournal.in Trade Marks Protection under Indian Trademark Law: An Assessment Dr.Chandrakanthi. L1 & Dr. Nataraja M. M2 1Assistant Professor, P.G. Department of Law and University Law College Bangalore University, Bangalore -560056 2Assistant Professor, Department of Mechanical Engineering Dr. Ambedkar Institute of Technology, Mallathahalli, Bangalore 560056 Abstract: Today trademark plays very vital role in mean a mark capable of being represented identification of goods and services with their graphically2.Trademark is capable of distinguishing quality. Trademark is a kind of good and the goods or services of one person from those of reputation pertaining to the goods and service others including the shape of goods, their packing provider and helps to identify them with a specific and combination of colours. mark to serve better for the consumer. As it is a ‘A trade mark is a sign that individualizes the kind of intellectual property, legal production is goods or services of a given enterprise and available to it. Violation of trademark right in case distinguishes them from its competitors.3Trade of registered trademark it is infringement and in mark is represented by the symbol TM or ®. case of unregistered trademark it will be passing off. Injunction, damages and account for profit are Therefore, a trademark used or proposed to be used the remedies available for violation of trademark in relation to goods or services for the purpose of rights in India. Now India trademarks are indicating or so as to indicate a connection in the governing under Indian Trade Mark Act, 1999. course of trade between the goods or services, as the case may be, and some person having the right Introduction as proprietor to use the mark4or permitted user, to Trademarks are a very valuable form of intellectual use the mark whether with or without any property like any other intellectual property rights indication of the identity of that person.5 and they are always associated with quality and consumer. Trademark safeguards the interest of The definition of a ‘mark’ contains a list of various consumer as well as trader as trademark make out types of marks. The term ‘mark’ has been defined the origin of goods from a definite trade source. to mean and include a device, brand, heading, label, Hence, it prevents the consumer from duping with ticket, name, signature, word, letter or numeral or a substantial commodity. Trademark enables the any combination thereof.6 Meanwhile the new consumer to distinguish the good from similar trademark Act has got certain additions to the goods. Further trademark helps the consumer to definition of trademark. As per the new definition identify the goods with a particular trader or with of mark under the Act a mark includes shape of his successor as of a business owner. For example, goods, packaging and combinations of colors the trademark ‘Lakme’ distinguishes the goods of also.7Though the trademark defined under the Act Lakme Lever Co. from those of say the ‘Revlon’.1 is very wide, it can be stated in short that Trademark is visual symbol used in relation to any Meaning and Definition of Trademark goods or services to indicate some kind of trade A trademark or trade mark is one of the Intellectual connection between the goods or services and the Property Rights. Trademark is a visual symbol and it might be in the form of work, phrase, design, 2 sound, smell, colour, product configuration, Section 2 (1) (zb) of Trademarks Act of India, numbers, combinations of those, a divide, or a label 1999. 3 applied to articles of commerce, which is capable World Intellectual Property Organization 4 of distinguishing the goods or services of one In relation to chapter XII (other than section107) person from those of others, It has been defined to of the Trademarks Act of India, 1999 5In relation to the other provisions of the Trademark Act, 1999. 1Wadehra, B.L., (2000), Law relating to patent 6Section (1) (j) of Trademark and Merchandise Act, Trademarks Copyright Designs and Geographical 1958. Indications, Delhi: Universal Law 7Section 2(1) (m) of Trademarks Act, 1999. Imperial Journal of Interdisciplinary Research (IJIR) Page 2024 Imperial Journal of Interdisciplinary Research (IJIR) Vol-2, Issue-11, 2016 ISSN: 2454-1362, http://www.onlinejournal.in person using the mark. However, to bring a mark matter, usually of a descriptive character, within the scope of the statutory definition of which will be varied depending upon the trademark, it should possess certain essential nature of the goods. In such cases the Registrar features as follows and with them it is easy to may insist as a condition of registration that understand the scope of trademark the blank space should be filled in only matter of specified character. a) Device: Device is a mark, which refers to any Historical Evolution of Trademarks Law in pictorial representation, which does not come India under any other category. b) Brand: Tough the precise significance of the Before 1940, there was not Trademark Act in word ‘brand’ in the definition of mark is not India. At that time there were substantial problems clear, it refers to those kinds of symbols, which were existed especially for the actions of are branded on the goods, in which case the infringement, passing off, etc’ Further more symbols themselves would constitute the different enactments both civil and criminal were trademark for e.g. “Temple Brand” or managing the trademarks protection i.e. the Indian “Gopuram brand”. Penal Code, 1860 in its chapter XVII (sections 463 c) Heading: it is also a mark in relation to textile to 489E) speaks about offences relating to goods. It may contain letters or numerals or “documents and to property marks”. Further any combination thereof.8 sections 478 to 48910 of the same Act speak about d) Label: It refers to a composite mark “property and other marks”. Besides the Indian containing various features including devices, Penal Code, the Specific Relief Act, 1877 also words and descriptive expressions, usually speaks about protection of trademarks and printed on paper, which can be pasted or temporary injunctions in case of infringement.11 attached to the goods themselves or their Further, the registration aspect was attempted to containers. establish by prescribing for a declaration as to e) Ticket: It appears to be something stitched or ownership of a trademark under the Indian tagged on the goods and containing the mark Registration Act, 1908, which was ignored by the printed or pasted thereon. Trade and Merchandise Marks Act, 1958.12By then f) Name: It refers to the name of a company, British rulers enacted the Indian Merchandise individual or firm. It includes an abbreviation Marks Act, 1889 and the Trademarks Act, 1940 to of a name and also work, letter or numeral. protect the trademarks. The 1940 Act was replica g) Shape: Shape of goods and package including of England Trademark Act. The Act was not case, box and containeretc does form a applicable to British Indian states like Mysore, trademark. Patiala, Saurashtra, Hyderabad, Kolhapur and h) Trade Name: Definition of ‘mark’ includes Kapurthala as there were separate legislations were ‘name’ as such the term “trademark” includes there. However, duplicity of trademark law was ‘trade name’. The connection or nexus avoided by reciprocal arrangement between between the marks used in relation to the Government of India and these states. goods and the person claiming a right to use 9 In 1948, common legislation was enacted covering the same is necessary. whole of India except the state of Jammu and i) House Mark and Product Mark: In trade particularly in the pharmaceutical trade we Kashir. Thus, after independence, significant come across two types of trademarks. One is developments took place in the field of business product mark, which is used only in respect of and trade. There was a need to bring out a one particular product; it often referred to as comprehensive legislation on the subject. brand name of the product. And another mark Accordingly the Government of India appointed is that House mark which is used on all the Trademarks Enquiry Committee to make products of a manufacturer. suggestions for the reforms in the trademarks Act, j) Scheme: Scheme of adoring or scheme of colour combination is also considered as a 10However, section 478 and 489 of the Indian Penal mark and could be registered. Code, 1860 were repealed by section 135 and k) Blanks: Trademark containing blanks also Schedule of the Trade and Merchandise Marks Act, considered as mark. Often a proprietor of a 1958. mark designs his label leaving some blank 11Section 54 of the Specific Relief Act, 1877. space to be filled in with some additional Illustrations (w) and (z) of the Section 54 of the Act, 1877 explains the intention of the framers in 8Section 80 of Trademarks Act, 1999. protecting the trademarks. 9Kirloskar Diesel Recon v. Kirloskar Proprietary 12Section 129 of the Trade and Merchandise Marks (1996) IPLR Bom 284 at 307. Act, 1958. Imperial Journal of Interdisciplinary Research (IJIR) Page 2025 Imperial Journal of Interdisciplinary Research (IJIR) Vol-2, Issue-11, 2016 ISSN: 2454-1362, http://www.onlinejournal.in 1940. The committee submitted its of falsification the law provides for the recommendations but all members of the penalties in he form of imprisonment and fine. committee never had unanimous opinion in this B. Protection of the Proprietor’s Right of regard. Therefore, the Government of India Assignment appointed Mr. Justice RajagopalaAyyangar of Madras High Court to examine the report of The law protects the individual commercial Enquiry Committee and make recommendations interest of the proprietor of the trademark like for the reformations.