Introduction
What reputation does for a person, a brand name does for a company. It takes a company and its products or services to the next level with a brand name. Furthermore, it is the brand name that provides the first and foremost point of contact for the business with its customers.
Then shouldn’t a name that holds that kind of significance be protected?
As a result, it’s recognized as a trademark and registered. World Intellectual Property Organization (WIPO) defines a trademark as something that distinguishes one product or service from another.
A trademark can be an emblem, a symbol, a logo, or a phrase that uniquely identifies a product. Essentially, a trademark is a form of intellectual property.
Trademark Rights in India
India’s trademark laws are governed by the Trademarks Act, 1999. As a result of signing the TRIPS agreement (Trade-Related Aspects of Intellectual Property Rights), the Act was primarily brought into force to fulfil India’s international obligations.
The owner of a trademark in India depends on how long the mark has been used, unlike patents and other intellectual property rights.
Consequently, in the case of trademarks, ‘first-to-use’ has taken over ‘first-to-file’. As an example, ABC Private Limited filed for a trademark for ‘ZOLA’ in 2017, but XYZ Private Limited used the name without registering it since 1995. Without regard to trademark registration india status, XYZ Private Limited would be the authorized user of trademark ZOLA.
Unregistered trademarks and their legal status
It is not mandatory to register trademarks. Despite the mark’s unregistered status, the common law provides protection under the law of torts, even if it is unregistered. As a result, common law prohibits passing off of goods. Defamation involves making false claims and harming another company’s reputation and goodwill. Under basic law, none of the parties may unjustly enrich themselves from the labor of the other. It is the same thing if one party steals a trademark and goodwill from another.
In a passing off suit, a Court typically considers the following:
- A lengthy period of use by the aggrieved party
- The plaintiff’s brand name is well known to the general public and its goods or services have acquired distinctiveness
- When the defendant’s products or services are treated as if they are the plaintiffs’, has the defendant caused confusion in the minds of the general public?
Protection of Well-Known Marks
Among the general public, famous and well-known trade names are protected under the Trademarks Act, 1999. Generally speaking, a brand is considered well-known if it has a strong reputation both nationally and internationally. Under the Act, well-known marks are strictly prohibited from being misused. A similar trademark registration is also taken into account.
Protection of Registered Trademarks
Registration of trademarks in India offers multiple levels of protection. A trademark registration is recommended by trademark specialists for this reason. This is not a requirement, however.
The Trademarks Act, 1999:
- Ensures that the right applicant owns the trademark
- Protects the trademark from infringement by providing statutory protection
- Protects registered trademarks from unauthorized use
- When necessary, sues for infringement.
It is still possible to sue for an unregistered trademark in common law, but the plaintiff must carry a heavier burden of proof than with a registered trademark.
Registrability of Trademarks
In the market, trademarks identify brands by distinguishing their products from others. In order to be registered, a trademark must be unique and be able to be represented graphically or visually.
These characteristics include the shape, colors and combinations of colors as well as the packaging of the items. An example of a registered trademark is the Coca-Cola bottle shape.
Despite the requirement that a trademark be unique to be registered, after prolonged use a trademark may also become distinctive. In spite of the non-unique nature of a trademark, it is still able to be registered as long as its distinctiveness has been acquired through use. A good example of this is the brand ‘Apple’.
The following grounds can be used to refuse to register a trademark:
The Registrar decides whether to register a trademark. There are two kinds of reasons why a trademark can be refused registration: absolute and relative.
If a trademark cannot be distinguished from others or is likely to cause confusion in consumers’ minds, it will be rejected on absolute grounds. In India, trademarks are declined when they threaten religious sentiments or promote obscenity. There are a number of absolute grounds for refusing a trademark listed in Section 9 of the Act.
Relative trademarks are refused if they’re deceptively similar to existing marks, or if they’re the same as existing trademarks. Furthermore, any law that prevents the registration of a trademark can also prevent its registration.
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Trademark Registration Process in Gurgaon