Trademark Under IPR

Trademark is a branch of intellectual property rights. Intellectual property rights permit people to maintain ownership rights of their innovative product and creative activity. The intellectual property came to light because of the efforts of human labour, so it is limited by a number of charges for the registration and charges for infringement. A trademark includes a name, word, or sign that differentiates goods from the goods of other enterprises. Marketing of goods or services by the procedure becomes much easier with a trademark because recognition of product with the trademark is assured and easier. The owner can prevent the use of his mark or sign by another competitor.

Uses of Trademark

Trademark identifies the owner of the product. Under any authorized agreement of product, a trademark can be used, an example of trademarks goods names are, iPod and a big mac. Company logos like the Golden Arches at McDonald’s and McDonald’s “I’m lovin’ it. Brand names like Apple, McDonald’s, and Dolce & Gabbana.

The usage of the trademark by unauthorized means or illegal means by producing it in trading is known as trademark piracy. If there is an infringement of trademark, the owner of the registered trademark can take legal action and for an unregistered trademark, the only option is passing off.  Many countries like the United States, Canada and many more also, accept the trademark policies, so they also gave the right to the master of product to take the action for the protection of their trademark A common concept of a trademark is that the owner of a registered trademark has a more legal right for protection than the owner of unregistered trademark.

Owner of the Trademark

Trademark gives protection to the owner by assuring them with the exclusive rights to use a trademark, to identify the goods or services or permit others to use it in results of payment. It is a weapon for the registered proprietor to stop the others from illegal use of the trademark. Under Section 28 the rights conferred by registration.

  • The registration of a trademark is valid if the right is given to the certified owner of the trademark, the owner  has the exclusive right to use of the trademark in respect of goods or services in which the trademark is registered and to claim maintenance in respect of infringement of the trademark is given to the holder of the trademark.
  • Wherever more than two persons are certified proprietors of the trademark which are same with or nearly identical with each other. The exclusive right to use of each of those trademarks shall not except if their own rights are related to any conditions or limitations entered on the register be expected to be taken by one of those persons as against of other persons only by registration of the trademark, but each of those persons has the same rights as against other persons.

Registration of Trademark

Any person claiming to be the owner of the trademark or supposed to used the trademark by him in future for this he may apply in writing to the appropriate registrar in a prescribed manner. The application must contain the name of the goods, mark and services, class of goods and the services in which it falls, name and address of the applicant and duration of use of the mark. Here the person means an association of firms, partnership firm, a company, trust, state government or the central government.

Conditions of registration

The central government by mentioning in the official gazette appoint a person to be known as the controller, general of patents, designs and trademark who shall be the registrar of the trademark. The central government may appoint other officers also if they think that they are appropriate, for the purpose of discharging, under the superintendence and direction of the registrar, the registrar may authorize them to discharge.

The registrar has the power to transfer or withdraw the cases by in writing with reasons mentioned. Under Section 6 of the Act, discussed the maintenance of a registered trademark. At head office wherein particulars of registered trademarks and other prescribed, particulars, except notice of the trust, shall be recorded. The copy of the register is to be kept at each branch office. It gives for the preservation of records in computer or diskettes or in any other electronic form.

Absolute grounds for refusal of registration

Absolute grounds for the refusal of registration is defined in Section 9 of the Act. The trademarks which can be lacking any distinctive characteristics or which consists exclusively of marks or signals, which can be used in trade to indicate the kind, fine, quantity, supposed grounds, values, geographical origin.

And also a time of production of goods or rendering of the offerings or different characteristics of the goods or offerings which consists solely of marks or indications which have come to be average in the present language. That marks are not entitled to registration. Except it is confirmed that the mark has in fact acquired a new character as a result of use before the date of application.

It  gives that a mark shall not be registered as trademarks if:

  1. It frauds the public or causes confusion.
  2. There is any matter to hurt religious susceptibility.
  3. There is an obscene or scandalous matter.
  4.  Its use is prohibited. It provides that if a mark contains exclusively of (a) the shape of goods which form the nature of goods or, (b) the shape of good which is needed to obtain a technical result or, (c) the shape of goods which gives substantial value of goods then it shall not be registered as trademark.

Relative grounds for refusal of registration

Under Section 11 of the Act, it gives relative grounds for the refusal of registration of a trademark. A trademark cannot be registered if because of (i) its identity with an earlier trademark and similarity of goods or services, (ii) its similarity to an earlier trade mark and the similarity of the goods and there is a probability of confusion.

Procedure and Duration of registration

The registrar on the application made by the proprietor of the trademark in the prescribed manner within the given period of time with the adequate payment of fees. Registration of a trademark shall be of ten years and renewal of the registered trademark is also for a period of ten years from the date of expiration of the original registration or of the last renewal of registration.

The registrar shall send the notice before the expiration of last registration in the prescribed manner to the registered proprietor. The notice mentions the date of expiration and payment of fees and upon which a renewal of registration may be obtained if at the expiration of the time given in that behalf those conditions have not duly complied with the registrar may remove the trademark from the register.

Infringement of trademark

A registered trademark is infringed by a person who not being a registered proprietor or a person using by way of permitted use in the course of trade, a mark which is identical with or deceptively similar to the trademark in relation to goods or services in respect of which the trademark is registered. After infringement, the owner of the trademark can go for civil legal proceedings against a party who infringes the registered trademark. Basically, Trademark infringement means the unapproved use of a trademark on regarding products and benefits in a way that is going to cause confusion, difficult, about the trader or potentially benefits.

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