MEANING & DEFINITION OF TRADEMARK
A TRADEMARK is a word, phrase, symbol or design, or combination of words, phrases, symbols or designs is used in the course of trade which identifies and distinguishes the source of the goods or services of one enterprise from those of others. It is a visual representation attached to the goods for the purpose of indicating their trade origin.
Definition of Trademark
According to The trade mark Act 1999, Trademark is defined as under-
Section 2(1)(zb)- “Trade mark” means 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 shape of goods, their packaging and combination of colors’; and
In relation to chapter XII, a registered trademark or a mark used in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services, as the case may be, and some person have the right as proprietor to use the mark; and
In relation to the other provisions of this act, a mark used or proposed to be used m relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services, as the case may be, and some person having the right, either as proprietor or by way of permitted user, to use the mark whether with or without any indication of the identity of that person, and includes a certification trade mark or collective mark.
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Under Trademark Act 1999, Mark is also defined as under:-
Section 2(1)(m)- “Mark” includes a device, brand, heading, label, ticket, name, signature, word, letter, shape of goods, packaging or combination of colors’ or any combination thereof.
So trademark is defined 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 the shape of goods, their packaging & combination of colors. For instance Ford – named after Henry Ford, is a name, then IBM – an abbreviation, Apple for computers – is a word, etc.
The definition of a trademark also includes the concept of service. In other words, a trademark not only distinguishes goods but also services. Under trademarks act service is defined as service of any description which is made available to potential users, and includes the provision of services in connection with business of any industrial or commercial matters such as banking, communication, education, financing, insurance, chit funds, real estate, transport, storage, material treatment, processing, supply of electrical or other energy, boarding, lodging, entertainment, amusement, construction, repair, converting of news or information or advertising.
2.2 ESSENTIAL REQUIREMENTS OF A TRADEMARK
The definition given in the act is very wide. Briefly stated, a trade mark is a visual symbol used in relation to any goods or services to indicate some kind of trade connection between the goods or services and the person using the mark.
In order to bring it within the scope of the statutory definition, a trade mark should satisfy the following essential requirements:
a) It must be a mark, that is a device, brand, heading, label, ticket, name or an abbreviation of a name, signature, word, letter or numeral shape of goods, packaging or combination of colors or any combination thereof;
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a) It must be capable of being represented graphically;
b) It must be capable of distinguishing the goods or services of one person from those of others;
a) It must be used or proposed to be used in relation to goods or services;
a) The use must be in the form of a printed or other visual representation of the mark;
a) Such use in relation to goods must be upon, or in any physical or in any other relation whatsoever to the goods; and
a) In relation to services must be use of the mark as or as part of any statement about the availability, provision or performance of such services,
The use must be for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services, and some person having the right to use the mark either as proprietor or by way of permitted user as the case may be. It is not necessary that the person using the mark should reveal his identity.
TYPES OF TRADEMARKS
1. Well-known Trademark
Well Known Trademark is that trade mark which has been acquired by the user of the said mark by using the said mark for a long period of time and which associates the owner to the goodwill and name-fame related to his service or products. A well known trade mark can be protected but an infringement case can’t be filed in the said case but still we can oppose any similar trademark to be registered.
Article 6bis The Paris convention provides for protection of well known mark by mandating the member countries to prohibit the use of a trademark, which constitutes a reproduction, an imitation, or a translation liable to create confusion of a mark considered by the competent authority of the country of registration or use to be well-known mark in that country as being already the mark of a person entitled to the benefits of the convention. Neither, the Paris Convention nor TRIPS agreement contains any definition of well-known mark. India has extended the right to Well-Known Trademarks prospectively from Sept 15, 2003 under, The Trade Mark Act, 1999, circumscribing their power to check operations of previously registered or used trademarks. It is defined under trademark act as under-
Section 2(1) (zg) defined Well-known trademark as:- “well-known trade mark”, in relation to any goods or services, means a mark which has become so to the substantial segment of the public which uses such goods or receives such services that the use of such mark in relation to other goods or services would be likely to be taken as indicating a connection in the course of trade or rendering of services between those goods or services and a person using the mark in relation to the first-mentioned goods or services.
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Section 11(6) to (11) deals with the matters relating to well-known trademark. Subsection (6) lays down the list of factors to be taken into account by the registrar while determining well-known trademark. It is mandatory for the registrar to look into these aspects, which includes:
1. Knowledge or recognition of that mark in the relevant section of public including knowledge in India obtained as a result of promotion of the trademark.
1. Duration, extent and geographical area of use of that mark.
2. Duration, extent and geographical area of any promotion of the mark, including advertising or publicity and presentation, at fair or exhibition.
3. Duration and geographical area of any registration of or any publication for registration of that mark, to the extent they reflect the use or recognition of the mark.
4. Record of successful enforcement and extent to which the mark has been recognized as a well-known trademark by any court or Registrar.
It must be mentioned here that these factors are only indicative and illustrative and by no means exhaustive. Registrar is not precluded from taking into consideration other factors, if found relevant. Also it is not necessary that all the criteria mentioned in the subsection (6) must be complied with. However, it is mandatory for the Registrar to take into consideration all these factors and cannot ignore any.
The protection afforded to a well-known trademark is on territorial basis. So the person seeking protection and enforcement of well known trademark has to adduce evidence regarding duration, extent and geographical area of any use of the well-known trademark. The kinds of evidence may include consumer surveys and opinion polls, promotion of the mark through advertising in both print and electronic media etc.
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However subsection (9) of section 11 forbids the Registrar to ask for the following as condition precedent to determine a trademark as well-known trademark. Particularly that the mark has been used or registered or filed for registration in India or outside India or that the trademark is well-known to the public at large in India are specifically excluded from consideration.
Subsection (7) of section 11 indicates the factors to be taken into account by the Registrar while determining whether a trademark is known or recognized ‘in relevant section of the public’. The inclusion of this phase indicates that a mark to become a well known trademark requires the knowledge on the part of public of relevant section and not the general public at large. The factors to be taken into account are as under:-
a) Number of actual or potential consumers of the goods or services;
b) Number of persons involved with the channels of distribution;
c) Business circles dealing with the goods or services to which that trademark apply.
The number of actual or potential users may vary depending upon the nature of goods-or services. What is registrar is supposed to do is not to count the numbers of person physically but to take into account the concerned section of users of those goods or services. As far as the distribution channels are concerned there has been vast change in the traditional mode of distribution and supply. The recent growth of super malls has changed the mode of distribution that must not be lost sight of. The third factor ‘business circles’ may include importers, wholesalers, franchisees and other dealers interested in dealing with the goods or services to which the mark applies.
Sub-section (8) of section 11 says that the determination of trademark as well-known trademark by any court or judicial authority amongst at least one relevant section of the public in India shall be taken as well-known mark by Registrar.
Subsection (10) of section 11 casts an obligation on Registrar to protect well-known trademark while considering the application for registration of any mark and its opposition thereto. The protection to well-known trademarks is afforded against the identical or similar trademarks, which may come up for registration to the Registrar. The underlying principle for providing protection to well-known trademarks is to prevent traders taking free ride. They may tend to take advantage of the goodwill of the well-known trademark without doing efforts. Thus the registrar is obliged to take into consideration ‘bad faith’ while balancing the interests of the parties (both applicant and opponent) involved in the enforcement of the well-known trademark.
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The term ‘bad faith’ is also read through implication under section 18(1) of the Act, which provides that any person claiming to be the proprietor of a trademark used or proposed to be used by him shall apply for the registration of his trademark in a prescribed form. Thus there is an implication that he intends to use the mark in the manner applied for and which is nothing but normal and fair use. If the applicant’s use or propose use of the mark is not normal and fair that would bring upon him the charge that the mark proposed has been applied for in ‘bad faith’.
Act does not define the expression ‘bad faith’ and IS left to the registrar to decide in each case based upon the facts and circumstances. Bad faith as interpreted by the courts in India connotes the breach of faith or willful failure to respond to one’s known obligations or duty. It imports a dishonest purpose or some moral obliquity and implies conscious doing of wrong. The allegation of ‘bad faith’ is a sinuous form of commercial fraud, which should not be taken lightly.
Subsection (11) of section 11 forms the exception to the subsection (6) to 10 in the sense that it protects the prior use or prior registration in good faith before the commencement of the act, of an identical or similar trademark as against well-known trademark. To get the benefit of this provision, one must show that the prior use or registration was in good faith. Once this is proved, the right to use the mark cannot be taken away on the ground that the mark is identical or similar to a well-known trademark.
2. Collective Trademark
The Collective Mark means a mark distinguishing the goods or services of a person or an association· of persons who is the proprietor thereof from those of others. The Collective Mark is a symbol identifying the manufacturer’s membership of a grade or organization or of goods manufactured or services provided by members of a particular organization. A Collective Mark is a trademark or service mark used, or intended to be used, III commerce, by the members of a cooperative, an association, or other collective group or organization, including a mark which indicates membership in a union, an association, or other organization.
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In the Trade Mark Act 1999, the concept of collective trademark has been introduced for the first time. The provisions relating to collective marks are contained in section 21(g) and 61 to 68. Collective mark is defined under the Trademark Act 1999 as under-
Section 2(g)- “collective mark” means a trade mark distinguishing the goods or services of members of an association of persons (not being. a partnership within the meaning of the Indian Partnership Act, 1932) which is the proprietor of the mark from those of others.
It means that collective mark is a trademark distinguishing the goods and services of members of an association of persons, from those of others. The proprietor of the collective mark is the association of such members. The use of the mark by the members is governed by the regulation framed by the association. A collective resembles in some respects a certification trade mark except that a collective mark indicating some character or quality of the goods or services as certified by the proprietor of the mark.
The. main function of the collective trademark is to distinguish the goods and services of members of an association from those of others. A number of persons who are members of an association are authorized, to use the mark, governed by the certain rules and regulations framed by the association. Collective Mark is very useful to persons who produce particular agricultural products like rice (eg. Basmati), apples, mangoes (eg. Alphanso), grapes and so on.
Since the definition of trademark includes collective mark, the provisions applicable to trade mark infringement shall also apply to the collective mark.
A collective trade mark can be obtained by an organization which can permit the members to use the mark. The association has to prepare and fJ1e a regulation with the Trade Mark Registry setting out the rules specifying standards and criteria for membership. Collective trade mark cannot be owned by individuals or a body corporate. It has to be a registered association or Trust having many members or beneficiaries.
3. Service Marks
Service marks came properly m India on the commencement of 1999 act viz September 15, 2003, when they became eligible for registration and obtaining relief for infringement and also passing off. A service mark is any word, name, symbol, device, or any combination, used, or intended to be used, in commerce, to identify and distinguish the services of one provider from services provided by others, and to indicate the source of the services.
Under the Trade Mark Act 1999, service mark is defined as service of any description which is made available to potel1:tial users, and includes the provision of services in connection with business of any industrial or commercial matters such as banking, communication, education, financing, insurance, chit funds, real estate, transport, storage, material treatment, processing, supply of electrical or other energy, boarding, lodging, entertainment, amusement, construction, repair, conveying of news or information or advertising.
Though the law for service marks would substantially remain same as law of trademark for goods, still there are some differences peculiar to trade marks for services which are necessary to understand. A Service Mark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. In case of use of service mark, mark may be used as part of any statement about the availability, provision or performance of such services.
In the first two decisions on the issue, the difference in approach of high courts of madras and Bombay has come to fore. In a case High Court said the confusing similarity or association of the marks has to be in relation to similarity between services and services and cannot be similarity between goods on the one hand services on the other. Then in another case, where plaintiff was selling cosmetics, hair care, and beauty care goods while defendant was using the mark for treatment for hair care, without going into the issue of goods or services held that action for infringement/ passing off was maintainable.
4. foreign trade Marks
The term “foreign trade mark” is not defined in the statute nor has it received judicial construction. But the general concept of the “foreign trade mark” is that it is a mark owned by a person whose legal status is that of a foreigner and it is in that sense that the term “foreign trade mark” is used hereinafter.
Excepting nationals of countries which do not accord to citizens of India the same rights as they accord to their own nationals in respect of registration and protection of trademarks, The Trademarks Act, 1999, makes no distinction between nationals and non-nationals in the matter of registration of trademarks, registration of assignees of registered trademarks, or of applying for registration as registered user of trade marks. Likewise, the common law also makes no distinction of the ground of nationality, and an alien, not being an enemy subject, can restrain another person from passing off goods as ad for his goods. In other words in India, except m the cases referred to above, national treatment is accorded to non-nationals in respect of protection of trade marks both under the statute law and under the common law.
Many non-nationals have registered their trademarks in India and continue to apply for registration of their trademarks. Out of the total number of trademarks on the register of trademarks, the percentage of foreign trademarks is around 32%. Out of the number of foreign trademarks in the register of trademarks, the majority relates to drugs and pharmaceutical preparations, followed by chemical products ‘used in industry, Science, photography, agriculture, scientific, nautical survey and electrical apparatus and instruments, etc.
All the registered foreign trademarks are not used in India. Indeed, the question of their use arises only if the goods to which they are applied are available for sale in India, for without vendible goods, a trademark does not exist. Ordinary, a non-national can have goods bearing his trademark for sale or for any purpose of trade in India only in the following circumstances namely:
i) Where he himself manufactures the goods in India or get the goods manufactured in India on his behalf under a contract by a local manufacturer and applied his trademark;
ii) Where he exports goods bearing his trademark to India;
iii) Where he grants a license to a person in India to manufacture the goods and apply his trademark.
It follows that only in the above cases it is normally possible for foreign trademarks to be used in India.
As cases of non-nationals themselves manufacturing goods in India arise only where they are resident in India and cases of non nationals getting goods manufactured in India on their behalf of local manufacturers, must be rare, the use of foreign trade marks under this category must be insignificant. It may be noted that for carrying on such activities, the previous permission of the Reserve Bank of India is necessary under the FERA, 1973.
The use of foreign trade marks by way of export of goods to India must also be vary insignificant as the import of goods into India is regulated by the Import Control Orders in force from time to time and import of goods for which indigenous equivalents are available are generally not permitted.
5. Certification Trademark
Under The Trademark Act 1999, Certification mark is defined as under section 2(1)(e) ‘certification trade mark’ means a mark capable of distinguishing the goods or services in connection with which it is used in the course of trade which are certified by the proprietor of the mark in respect of origin, material, mode of manufacture of goods or performance of services, quality, accuracy or other characteristics from goods or services not so certified and registrable as such under Chapter IX in respect of those goods or services in the name, as proprietor of the certification trade mark, of that person.
The function of the certification mark is not to indicate trade origin but to certify that the goods or services in relation to which it is applied are certified by the proprietor of the mark as to certain characteristics of the goods and services. The definition of a trademark also includes a certification trademark, vide section 2(1)(zb)(ii).
Since the definition of trademark includes certification trademark it should satisfy the test of graphic representation the capacity to distinguish and all other provisions of the act as are applicable to an ordinary trademark.
TRADEMARK REGISTRATION
The main purpose of the statute, namely, the Trademarks Act, 1999, is to provide the owner of the trademark with the legal title to exclusive use of his trademark for the goods for which it is registered. Under the statute for an unused trademark to qualify for registration, the applicant must satisfy the Registrar of the Trademark that at the time of making the application he had a present and definite intention to use it himself. The only exceptions are where the applicant proposes to assign the trademark to a company to be formed or where the applicant seeks registration of a trademark consisting of an invented word as a defensive trademark.
The register of trademarks IS divided into two parts called respectively Part A and Part B. If the trademark is distinctive, it will be qualified for registration In Part A of the Register and a trademark which is distinctive, or which is not distinctive but is capable of distinguishing, will be qualified for registration in Part B of the Register. The test of distinctiveness is less stringent in the case of Part B registration, and the rights conferred by registration in Part B of the register are lesser than those conferred by registration in Part A of the register. Part B of the register was created for the first time under the Trade and Merchandise Marks Act, 1958, and its real purpose is to facilitate registration of trademarks in countries abroad which do not legally recognize common law trademarks and where home registration is essential to secure protection of trademarks.
The following types of trademarks are regarded as prima facie distinctive and qualify for registration in Part A of the Register:
a) The name of a company, individual or firm represented in a special or particular manner;
b) The signature of the applicant for registration or some predecessor in his business;
c) One or more invented words;
d) One or more words having no direct reference to the character or quality of the goods;
e) Any other distinctive mark.
f) A name, signature, or word which does not come within the types mentioned above is not registrable in part ‘A’ of the register, except upon evidence of its distinctiveness.
All trade marks registrable in part A of the register can be registered in Part B of the register. Normally, applicants seek registration of trademarks in part A of the Register and only where it is not possible to obtain registration in Part A of the Register, then they seek registration in Part B.
There are following requisites for the registration in Part A and B of the Register:
A trade name shall not be registered in part A of the register unless it contains or consists at least one of the following particulars, namely:-
a) The name of the company, individual or firm represented In a special or particular manner;
b) The signature of the applicant for registration or some predecessor in his business;
c) One or more invented words;
d) One or more words having no direct reference to the character or quality of the goods
e) Any other distinctive mark.
A name, signature or word, other than such which falls within the description in clauses (a), (b), (c) and (d) of sub-section (1) shall not be registrable in Part A of the register except upon evidence of its distinctiveness.
For the purpose of the act, the expression “distinctive” in relation to the goods in respect of which trademark is proposed to be registered, means adapted to distinguish goods with which the proprietor of the trademark is or may be connected in the course of trade from goods in the case of which no connection subsists.
A trade mark shall not be registered in Part B of the register unless the trade mark in relation to the goods in respect of which it is proposed to be registered is distinctive, or is not distinctive but is capable of distinguishing goods with which the proprietor of trademark is or may be connected in the course of trade from goods in the case of which no connection subsists.
In determining whether the trademark is distinctive or is capable of distinguishing, the tribunal may have regard to the extent to which (a) a trademark is inherently distinctive or is inherently capable of distinguishing as aforesaid; and (b) by reason of the use of the trademark or of any other circumstances, the trade mark is in fact so adapted to distinguish or is in fact capable of distinguishing as aforesaid.
Subject to the other provisions of the section, a trademark in respect of any goods- (a) registered in Part A of the Register may be registered in Part B of the Register; and (b) registered in part B of the Register may be registered in Part A of the Register; in the name of the same proprietor of the same trade mark or any part or parts thereof.
There are certain prohibition for the registration of certain marks-
a) The use of which would be likely to deceive or cause confusion;
b) The use of which would be contrary to any law for the time being in force;
c) Which comprises or contains scandalous or obscene matter;
d) Which comprises or contains any matter likely to hurt the religious susceptibilities of any class or section of the citizen of India;
e) Which would otherwise be disentitled to protection In a court shall not be registered as a trademark.
It is the characteristic feature of our trademark law that before a trademark is registered, it should be subjected to a close and thorough examination to ensure that it is distinctive, is not deceptive and is free from conflict with registered and pending marks of others. All accepted applications are required to be advertised in a fortnightly publication of the trademark registry, known as trademark journal, to give third party an opportunity, for opposition and a mark will be registered only subject to determination of opposition to it. The term of opposition is seven years, but the registration can be renewed from time to time by payment of necessary renewal fees.
The registration of trademark can be cancelled either by an application to the registrar or by direct application to the high Court in broad classes of cases, (i) where the mark was wrongly registered, and (ii) where something has gone wrong after registration. While the original registration of a part A trademark remains open to be attached always, the original registration of a part A trade mark can be attached after seven years only on the following grounds, namely:
a) That the original registration was obtained by fraud;
b) That the trade mark was registered in contravention of the provision of section 11;
c) That the trade mark was not, at the commencement of proceedings, distinctive of the goods of the registered proprietor.
It is now well settled that the classes of cases where the trademark can be removed from the register from post-registration defects are limited to those set out in the statute. These cases consist of non-use, deceptiveness arising through the fault of the proprietor and certain types of descriptiveness. If a trademark remains unused for more than five years and one month after its registration, it is liable to be removed from the register of trade marks unless its proprietor can show that he was prevented from using the trade mark due to special circumstances in the trade.
Any person who claims to be the proprietor of a trade mark can apply for registration of the mark. Based on the requirements of a proprietor an application is required to be filed in the office of the Trade Mark Registrar within whose territorial limits the applicant carries on its principal place of business. In case of joint applicants, the applicant whose name features first on the application, his principal place of business will be considered.
Every application is made for a particular class as per the classification of goods and services set out in the Trade Marks Act 1958. For instance, Form No. TM-1 is required to be filed where the proprietor makes an application to register a trademark for a specification of goo