A trademark is a distinctive sign that identifies certain goods or services as those produced or provided by a specific person or enterprise. Trademarks may be one or a combination of words, letters, and numerals. They may also consist of drawings, symbols, three-dimensional signs such as the shape and packaging of goods, or colors used as a distinguishing feature. Collective marks are owned by an association whose members use them to identify themselves with a level of quality. Certification marks are given for compliance with defined standards. (Example ISO9000.) A trademark provides to the owner of the mark by ensuring the exclusive right to use it to identify goods or services or to authorize others to use it in return for some consideration (payment). A well-known trademark in relation to any goods or services means a mark that 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 explained by Edge Legal.
The enactment of the Indian Trademarks Act 1999 is a big step forward from the Trade and Merchandise Marks Act 1958 and the Trademark Act 1940. The newly enacted Act has some features not present in the 1958 Act, and these are:
- Registration of service marks, collective marks and certification trademarks.
- Increasing the period of registration and renewal from 7 years to 10 years.
- Allowing filing of a single application for registration in more than one class.
- Enhanced punishment for offences related to trademarks.
- Exhaustive definitions for terms frequently used.
- Simplified procedure for registration of registered users and enlarged scope of permitted use.
- Constitution of an Appellate Board for speedy disposal of appeals and rectification applications which, at present, lie before the High Court.
Well-known trademarks and associated trademark registration
A well-known trademark in relation to any goods or services means a mark that has become known to the substantial segment of the public that uses such goods or receives such services. Associated trademarks are, in commercial terms, marks that resemble each other and are owned by the same owner, but are applied to the same type of goods or services. For example, a company dealing in readymade garments may use associated marks for shirts, trousers, etc., meaning trademarks deemed to be, or required to be, registered as associated trademarks under this Act.
The Indian Act of 1958 did not have any reference to service marks. Service means service of any description that is made available to potential users, and includes the provision of services in connection with the business of 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 and advertising. Marks used to represent such services are known as service marks.
Certification trademarks and collective marks
A certification trademark means a guarantee mark that indicates that the goods to which it is applied are of a certain quality or are manufactured in a particular way or come from a certain region or use some specific material or maintain a certain level of accuracy. The goods must originate from a certain region rather than from a particular trader. Certification marks are also applicable to services, and the same parameters will have to be satisfied. Further, these marks are registrable just like any other trademark. Agmark used in India for various food items is a kind of certification mark although it is not registered as a certification mark; the concept of certification mark was not in vogue at the time of introduction of Agmark. A collective mark means a trademark distinguishing from those of others, 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.
Term of a registered trademark
The initial registration of a trademark shall be for a period of 10 years, but may be renewed from time to time for an unlimited period by payment of the renewal fees.
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