A trademark can be classified into different types:
- Word Mark: These are words, letters or numbers used to represent a brand. For example, the brand name, the tagline, the name of a popular product, etc.
- Device Marks: Device marks are trademarks that depict words, letters, or numbers in a distinctive way through a design element. For example – logos or products labels
- 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 a mark owned by an association of Persons, a governmental institution, or body Corporate collectively. These marks indicate that they originated from a group of individuals and not a single person.
- Certification Marks: A certification trade mark under Section 2 (1)(e) of the Trademarks Act, 1999, are trademarks which are used to certify that a product meets certain quality or safety standards set forth by a concerned authority.
- 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.
- Unconventional Trademarks: Unconventional trademarks are the most easily recognized trademarks because of their 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.
Trademark Law & its Purpose
Trademarks in India are governed by the all encompassing Trademark Law, the Trademark Act of 1999. This law not just outlines the legal definition of Trademarks as discussed above, but also governs all other aspects of it, such as Trademark Registration, Trademark Rights, and Trademark Infringements. Let’s look into the purpose of the Trademark law a little more deeply.
- Protection of Intellectual Property: The primary purpose of the Trademark Act is to provide legal protection to the intellectual property rights of a Trademark Owner. For this, the act establishes frameworks of Trademark Registration, Trademark Enforcement and remedies against Trademark Infringement to prevent the unauthorized use of a Trademark.
- Creation of a Comprehensive Trademark Database: The procedure of Trademark Registration under the Trademark Act enables the development of a comprehensive database of Trademarks with their real time statuses mentioned for public viewing and inspection. This ensures transparency and easy access to any updated information about Trademarks.
- Encouraging Business Growth and Investment: The use of Trademarks under the framework of Trademark law enhances the goodwill and trustworthiness of a brand, thereby encouraging more and more investors to invest in it and propel its growth and expansion.
- International Harmonization and Compliance: The Trademarks Act of 1999 aligns with international trademark standards, including the obligations under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the Nice Classification system. This promotes harmonization with global trademark practices and facilitates international trade while enhancing India’s compliance with international agreements.
Objectives of a Trademark
1. Brand Recognition
2. Brand Protection against Copycats
3. Brand Communication to the Public
4. Registered Trademark is Considered the Most Valuable Asset
5. Trademarks increases the Employment Opportunities for a Brand
6. Trademarks Can be Used on the Internet Efficiently
What is Trademark Infringement?
According to the Trademark Act, 1999, a trademark is infringed
- If the infringing 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 infringing trademark is used in a way that is deceptively similar to a registered trademark, and is likely to trick the customer about the origin of its products.
- 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 but intentional and deliberate.
- 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
The court might grant the following remedies in cases of trademark infringement:
- Temporary Injunction
- Permanent Injunction
- 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
Q1: How does trademark registration help in preventing others from using a similar mark?
Trademark registration grants exclusive rights of usership to the owner of the mark, making it easier to prevent others from using a similar mark that may cause confusion or dilute the trademark owner’s brand.
Q2: How does trademark registration enhance my brand's credibility and trustworthiness?
A registered trademark helps consumers identify your brand easily and makes it stand out from the competition. This helps in enhancing brand’s credibility and trustworthiness.
Q3: What advantages does trademark registration offer in terms of exclusive rights to use the mark?
Trademark registration provides exclusive rights of usership to the Trademark owner and gives him the authority to take legal actions against others using a similar mark.
Q4: How does trademark registration provide a solid foundation for expanding my business nationally or internationally?
Trademark registration establishes your exclusive ownership rights nationally, giving you confidence to expand your business without infringing on others’ rights in India and simplifies the registration process for your Trademark in the new international markets you want to expand.
Q5: What advantages does trademark registration provide in terms of legal protection and brand recognition?
Trademark registration offers legal protection to the concerned trademark against plagiarism and misuse, making it easier for the trademark owner to enforce his IP rights in the event of a dispute. Also, ™ Registration helps in enhancing brand recognition by assisting consumers identify and differentiate your brand from the competitors.