Trademark rights in India are statutorily protected by the Trademark Act, 1999 and additionally below the not unusualplace regulation treatment of passing off. The management of such safety below the Act is executed via way of means of the Controller General of Patents, Designs and Trademarks. The Trademark Act, 1999 offers with the safety, registration and prevention of fraudulent use of trademarks. It additionally offers with the rights of the holder of the trademark, consequences for infringement, treatments for the broken in addition to modes of transference of the trademark.
Trademark is described in the Trademark Act, 1999 as, “trademark approach a mark able to being represented graphically and that is able to distinguishing the products or offerings of 1 character from the ones of others and can encompass the form of goods, their packaging and aggregate of colours.” Such a mark may also encompass severa matters together with signatures, names, labels, headings etc.
Registration of Trademark
To apply for a trademark a person must adhere to the provisions enlisted under Section 18 of the Act. The Section requires any persons applying for a trademark to apply in writing in the manner that is prescribed for the registration. The application has to contain the name of the mark, goods and services, the class under which goods and services fall, the period of the use of the mark and the personal details of the applicant such as name and address.
Infringement of Trademark
The term infringement means the violation of someone’s rights. Therefore infringement of trademark means the violation of trademark rights. A trademark is said to be infringed when there is an unauthorised use of a trademark or a substantially similar mark on goods or services of a similar nature. In such a case, the court will look at whether such use of the trademark will cause any confusion to the consumer as to the actual brand they are purchasing.
Therefore, according to the Act a trademark is infringed if:-
If the trademark is a copy of a registered trademark with a few additions or alterations.
If the infringed mark is printed or used in advertisements.
If the infringed mark is used in the course of trade
If the mark used is so similar to a registered mark that it is likely to confuse or deceive a consumer when selecting a category of product.
In case of infringement of a registered trademark, the person may file a suit for damages. For filing such a suit the following conditions must be met:
The person filing the suit (plaintiff) must be the registered owner of the trademark.
The person who is infringing (defendant) must be using a mark that is similar to that of the plaintiff such that it can easily be confused as one another.
Such use by the defendant is not accidental in nature.
The use of the mark by the defendant must be in the course or similar goods or services to that which the trademark is registered to.
Classification of trademark
Section 7 of the Trademark Act, 1999 requires the classification of trademark according to the international classification of goods and services. There are a total of 45 classes goods and services may fall under in such a classification. The international classification system used is called the Nice Classification (NCL), it was established in 1957 during the Nice Agreement.
According to the NCL, there are 45 classes under which goods and services fall. Classes 1 – 34 are for goods and the classes 35 – 45 are for services.