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Difference Between Word Mark and Device Mark – Trademark in India

The mega-commercial world of big businesses and e-commerce industries nowadays depends highly upon effective marketing and branding strategies. Products, companies, and even individuals are involved in representing brands these days. Extensive media surrounds our daily life through different modes, and a majority of these are engrossed into marketing of popular brands. Whether it is soaps or cars, books or shoes, big brands are marketing themselves everywhere, every time, and in every possible way. Among the various tools used by businesses for branding and marketing, intellectual properties like trademarks, patents, and designs have been proven to be the most effective and efficient instruments that have successfully stood the test of time.
Difference Between Word Mark And Device Mark – Trademark In India
Among all the types of intellectual properties, this article specifically discusses Trademarks and its categories in a detailed manner. Trademarks are unique creations that entitle ownership to the creators and protect them against the plagiarism or misuse of such creations. Trademarks are regulated under the Trademarks Act, 1999, which clearly defines the rights of its owners, and the legal consequences of its infringement by any individual and non-individual entity. For the better understanding of our readers, we have also provided the top 5 illustrations of trademark disputes in India.

Table of Contents

What are Trademarks?

The term Trademark is defined in section 2(zb) of the Trademarks Act, 1999, according to which Trademarks are marks capable of graphical representation that can distinguish goods or services of one business from that of the other. Trademarks are one of the most valuable assets for modern business. These are unique marks, signs, and symbols representing the brand of the businesses in the market, and forming their unique identity to enhance their popularity and recognition among potential buyers. Businesses usually have a number of IPR assets that can be identified as their Trademarks such as their legal names, trade names, brand Name, logos, product names, product labels, punchlines, taglines, audio tunes, and the domain names. Among these, most trademarks generally remain unidentified by businesses which lack the knowledge of the need and relevance of owning trademarks.

What are the types of Trademarks?

Trademarks can be divided into two broad categories, namely, word marks and device marks. While trademarks in the form of words, like names of businesses can be identified as wordmarks, device marks include specific symbols like logos and labels that uniquely represent the businesses in the market. The following marks unique and original to businesses can be eligible to be identified as their trademarks, according to Section 2(m) of the Act.
S.No. Word Marks Device Marks
1.
Names
Logos
2.
Signatures
Labels
3.
Taglines
Audio tunes
4.
Slogans
Images
5.
Punchlines
Shapes
6.
Domain Names
Colour Combinations

Logos, Pictures, and Drawings

With those resounding words, don’t you think we need an attractive image or logo, picture, or drawing to heighten the effect? According to the nature of the product, the accompanying photograph illustrates the depth like a picture book with words and pictures working together. Living in a digital world where millions of images and videos are exchanged every day, we understand the idea well.

Wordmarks are the Most Common Trademarks

In this forest of media around us, brand names are the most well-known marketing instruments. Whether such names have a clever origin, are gimmicks like TOSS, or an honorable company proprietor name like TED, their marketing becomes the highest priority for businesses. Most logos and symbols representing products and companies would not have been as impactful as they are, without their brand value. These words gradually become the most significant set of words for popular advertising and marketing of businesses.
For instance, if you decided to set up a factory to manufacture biscuits, your first thought would be finding a suitably dramatic word to represent your brand. Let us say that you decided to name your brand as CRUNCHY, you shall have to then register it as a wordmark. You can also go beyond a single word and add other characters and words to extend it into a slogan or a tagline.
How about a few examples?
  • CRUNCHY 900
  • CRUNCHY ASAP
  • CRUNCHY FOREVER
  • CRUNCHY TIMES
  • LOVE YOUR CRUNCHY MOMENTS
Each name mentioned above can be registered as a wordmark. Registrations of wordmarks would mean that none other than its owners are entitled to its use. Moreover, registrations as wordmarks enables its owners to sue parties who plagiarize or misuse such wordmarks, and impose hefty penalties on them.

Device Marks

If you decide to register CRUNCHY along with an image of a child holding a biscuit and your company logo, too, you can do so by registering these as device marks. Aside from the words and numerals earlier registered, you now enjoy the privilege of using the combinations of images, logos and pictures, for the branding of your business.

Colour, Shape, Sound and 3D trademark combinations

Even if the stringent laws related to trademarks, and the complex procedure of its registration gets simplified, professional rivalry between businesses will probably disturb the peace and harmony of the markets. Stealing the thunder of popular businesses nowadays seems to be the norm in the competitive domestic and global markets. Hence, businesses are required to diversify their choice of brand representation, in order to protect their originality and uniqueness. For this, aside from common word and device marks, one may also register minor differences like color and style of fonts, theme music, signature tunes, and advertisisng jingles.

Why are Trademarks Disputable?

Glancing at the print, broadcast, and digital media, we observe that many companies dealing in similar products use identical word and device marks for their marketing and branding. This often confuses and misleads buyers in buying pirated and fake products instead of original ones. Moreover, a plagiarised product in the market has the potential to bring down the brand value of the original product, quite steeply and rapidly. It is for this reason that the original owners of intellectual properties have been provided with the option of registering them, and acquiring legal protection against their plagiarism and misuse. Parties that plagiarise or unintentionally use similar / identical trademarks, can be sued by the original owners of such trademarks, thereby resulting in the imposition of hefty penalties and fines on the defaulter.
Top 5 Illustrations of Legal Disputes Arising Out of Trademark Use
    1. The case involving the terms Ayur and Ayu
    Both terms appear similar and connected to the word Ayurveda which is a system of traditional Indian medicine. According to the plaintiff, they have exclusive rights due to the registration of both terms Ayur and Ayu. The plaintiff complains that the defendant has applied to register the following terms:
    • Ayurcare
    • Himani Ayurdhara
    • Himani Ayucare
    Such clashing of interests is relatively common in the business world. According to Plaintiff, they use the terms Ayur and Ayu in manufacturing and selling essential oils, hair lotions, cosmetics, and shampoos. 
    1. Montblanc and New Delhi Stationery Mart
    Wordmarks “Spacewalker” and “Starwalker” can probably confuse the minds of the general public. The defendant used Spacewalker, while the Plaintiff has the word mark Starwalker registered for itself. Besides similar wordmarks, the dispute concerns a three-ringed device mark with similarity in shape and configuration.  
    1. Arvind and Hahnemann Laboratories
    In words EYLEX and EYETEX, EYE is the word common to both. The defendant used LEX, while the plaintiff used TEX. LEX and TEX are quite similar and, since they are being used by two different brands, they might be misleading for the buyers. Besides being a registered word mark, EYETEX also owned a device mark with an artistic drawing of a lady’s eye.  4.Praba’s V Care Clinic and I-care Clinic “CARE” is a term representing public welfare and hence cannot be used  by any business. However, this would have been an issue if the word “CARE” was being used alone. Here, since the word “CARE” is a part of the whole trademark, and since comparison needs to be made on the whole wordmark rather than a specific part of it, the usage of the word “CARE” by both businesses does not violate trademark rules.  
    1. Ansari Bilal and Shafeeque Ahmed
    The defendant claims that the calligraphy they have used is quite different from what the plaintiff uses. Quoting the registration number, the plaintiff claims ownership over the word mark NAGEENA, which is also being used by the defendant

Conclusion

Entrepreneurs and business owners usually lack a complete knowledge and overview about relevant legal concepts like Intellectual Property Rights. In this article, we have tried our best to provide a wholesome overview about trademarks and their relevance to businesses and their brands. However, the information that we have provided here is just the tip of the iceberg, as trademark is a complex  legal subject that demands time and patience for a thorough understanding. As we have a robust team of legal consultants with years of knowledge and experience in working with trademarks, we advise you that you avail of our consultancy services for a comprehensive perspective on trademarks that might help you in your future endeavors. All you have to do is visit our official page on trademarksand send us your query and we will respond to you in no time.

About Setindiabiz

Setindiabiz is an organized team of experienced CA, CS, & Lawyers, duly supported by a pool of trained accountants & paralegal staff that provides quality & affordable compliance services to startups & small businesses in India. The views, statements and recommendations expressed in this article or post are only for the sole objective of providing information, and it does not constitute professional advice or recommendation of the company. Neither the author nor the company or its affiliates accepts any liability for any loss or damage arising from any information in this article or any actions taken in reliance thereon.

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