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Trademark Meaning, Objective and Infringement

Everyone is familiar with the term ‘trademark’. There is a lot of importance to being aware of how these small things can create a big difference in society, even if they seem minimal.
Section 2(zb) of the Indian Trademarks Act, 1999 defines a trade mark as a type of intellectual property identifying and differentiating products or services from others by means of a recognized symbol, design, or expression. Any individual, organization, or legal entity can own a trademark. Trademarks can be filed by anyone who intends to use or proposes to use a brand name commercially.
Trademark Meaning, Objective and Infringement
The Trademark Act, 1999 addresses trademark protection, registration, and the prevention of fraudulent usage. It also highlights the rights of the trademark holder, fines for infringement, remedies for harm, and procedures of trademark transference.
Table of Content

What are the Different Types of Trademark?

Generally, trademarks are used to identify the source, owner, or developer of a product or service. There are many types of logos, slogans, bands, and product brands to choose from. A trademark also restricts the use of any mark that may be confused with an existing one. Soft drink companies, for example, cannot lawfully use symbols resembling Coca-Cola or names that sound similar.
A trademark can be classified into different types:
Word Mark: A word mark can be a word, a letter, or a number. Exclusive rights are granted to owners of word marks, letters, or numbers. The portrayal of the mark is not owned by anyone.
Device Marks: Device marks are trademarks that depict words, letters, or numbers in a distinctive way.
Service Marks: A service mark is simply a mark that identifies one person’s services from those of another. Service marks do not represent items, but rather the services provided by an individual or corporation.
Collective Marks: A collective mark is defined as that which educates the audience about a certain attribute of the product for which they are employed. Such marks are owned by an association, a governmental institution, or corporate. Collective marks are also used to market certain items that have qualities which are distinctive to the manufacturer in a given location.
Certification Marks: A certification trade mark under Section 2 (1)(e) of the Trademarks Act, 1999, reassures customers that the product fits specified parameters. Toys, electronics, and other items, for example, have similar markings that reflect the product’ safety and quality. It is said that the certification mark is unique from the collective mark in that it can be used by anybody who fulfills the given criteria.
Well-known Marks: Section 11(9) requires a request in TM-M to declare a mark as a well-known trademark that is easily recognized by the mass of people. People are not allowed to register or use marks that are copied from well-known marks. Like we discussed above the example of Coca-Cola.
A specific group of individuals must be aware of the trademark. Actual or future clients, those involved in distribution, and commercial service providers interacting with the goods and services are among those included in this group.
Unconventional Trademarks: Unconventional trademarks are defined as the most recognized because of its impressive, decisively unique characters. Examples include:
  • Color Trademark: If a certain color has a distinguishing feature identifying the goods of a specific dealer, it can be registered as a trademark. For example, red wine.
  • Sound Marks: Sound marks are signs that are detected by hearing and are distinguished by their own and exclusive sound. Consider musical notes.
  • Shape Marks: When the shape of a product or package has a distinguishing trait, it might be registered. Consider Ornamental Lamps.
Smell Marks: A smell mark can be detected when the smell is unique and cannot be confused with a related product. Perfumes, for example.

Would You Like to Register Your Trademark?

You can register a trademark application under Section 18 of the Trademark Act, 1999. Make sure to follow the procedures outlined in the Section for a better understanding. The section requires anybody registering for a trademark to do so in writing and in the manner authorized for registration. The application must include the name of the mark, the products and services, the class into which the goods and services belong, the duration of use of the mark, and the applicant’s personal information such as name and address.

Trademark Classification

Under Section 7 of the Trademark Act, 1999, trademarks are classified according to the International categorization of products and services. In this manner, there are 45 categories of products and services. The Nice Classification (NCL) is a worldwide classification system used, and it was established in 1957 as a part of the Nice Agreement.
According to the NCL, products and services are classified into 45 categories. Classes 1 through 34 are for products, whereas classes 35 through 45 are for services.

Benefits of Trademark Registration

What are the advantages of owning a trademark? This type of intellectual property protection prohibits others from exploiting a brand’s name and emblems. The brand business owner has his/her public image, through which chances are they will be recognised and established.
To gain all of this, there is a list of benefits of trademark registration that may help build and brand business’ exposure through trademarks.
Protection Against Copycats: Nobody, absolutely no one, has the right to steal a brand’s concepts or name after it has been registered as a trademark.
Assists with Business Expansion: Trademarks are an effective business communication tool for capturing the attention of customers. Customers who see a trademark quickly know who they are dealing with, the company’s reputation, and are less inclined to explore alternatives. The brand may be the ultimate influence in a customer’s buying choice.
Registered Brand is Considered the Most Valuable Asset: Many brands throughout the world place a higher value on their trademark than any other tangible asset. Brand value is only earned when the organization has total ownership of the brand name via trademark protection.
Employment Opportunity Increases: It is interesting to know how brands can actually fill the void in people’s minds with positive thoughts. As a result, candidates are more interested in career opportunities. Employee retention may be increased if employees have good views about the company’s brand and the products and services it provides.
Trademarks Use Internet Efficiently: Everything is at your fingertips in this digital realm. Furthermore, if a company or organization uses social media as a channel for brand awareness, there are possibilities that strong traffic on a website or social media platform converts into better rankings, generating even more traffic, consumers, and better brand recognition.
Remember, the more you classify your brand from others in your business, the easier it will be to preserve. Choose a name and logo that distinguishes your company and protects it from competition. Once a trademark has acquired such value, it is very important to safeguard it from misuse and infringement by others.
Read further about trademark infringement in the next section.

What is Trademark Infringement?

The Trademarks Act of 1999 establishes the law governing trademark registration, protection, and infringement penalties. Many international and national organizations work to preserve intellectual property, such as trademarks.
The Indian Patent Office, which is overseen by the Controller General of Patents, design and Trademarks, is in charge of trademark protection in India. In simple words, trademark infringement is the unauthorized use of a mark that is identical or deceptively similar to a registered trademark.
In the above paragraph, ‘deceptively similar’ refers to the fact that when an ordinary customer looks at the mark, he or she is likely to be confused about the origin of the products or services.
According to the Trademark Act, 1999, a trademark is infringed, when:
  • If the trademark is a replication of a registered trademark with minimal changes or modifications.
  • If the infringing trademark is printed or used in advertising.
  • If the infringing trademark is used in business.
  • If the mark is used in a way that is deceptively similar to a registered trademark, the client is likely to be tricked or bamboozled when selecting a product category.
In the course of infringement of a trademark registration, the business owner has the right to sue for monetary damages. The following requirements must be completed to file such a suit:
  • The complainant also known as the plaintiff must be the registered owner of the trademark.
  • The defendant must have used the ‘deceptively similar’ trademark to the plaintiff’s in a way that they were misled with one another.
  • The defendant’s usage is not by chance.
  • The defendant’s use of the mark must be in the process of providing similar products or services to those for which the trademark is registered.

Penalties of Trademark Infringement

Trademark infringement in India is a punishable offense, which means that the infringer will face some serious criminal prosecution in addition to civil sanctions. The registration of a trademark is also not necessary by Indian law for the institution of civil or criminal actions. This is related to the common law idea of passing off.
The court might grant the following remedies in cases of trademark infringement:
  • Temporary Injunction
  • Permanent Injunction
  • Damages
  • Profit and loss statement (damages in the amount of the profits gained from the infringement)
  • Destruction of items bearing an infringing trademark
  • The expense of legal procedures

Conclusion

There is no hard and fast timeframe for getting your trademark. However, you should file a trademark application as soon as possible. It helps increase your chance of securing your intellectual property, establishes a pattern of your ownership and provides limited protection.

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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