This post was first published on 2nd July, 2014.
A trademark is a sign that is used to identify goods and services as those produced or provided by a specific person or enterprise. It helps in distinguishing those goods and services from similar ones provided by another. For example, ‘Apple’ is the trademark that identifies goods and services manufactured and distributed by Apple Inc.
The object of trademark law is to deal with the precise nature of rights, which a person can acquire with respect to trademarks, the mode of acquisition of such rights, the method of transfer of those rights to others, the nature of infringement of such rights, the procedure for enforcement of those rights and the remedies available in case of such infringement.
This branch of commercial law has undergone changes from time to time in tune with the changing pattern of business methods and practices. Section 2(zb) of the Trade Marks Act, 1999 defines the word trademark as:
“Trademark” means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours: and—
(i) in relation to Chapter XII (other than section 107), a registered trade mark or a mark used in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services, as the case may be, and some person having the right as proprietor to use the mark: and
ii) in relation to other provision of this Act, a mark used or proposed to be used in relation to goods or services for the purpose of indicating or so to indicate a connection in the course of trade between the goods or services as the case may be, and some person having the right, either as proprietor or by way of permitted user, to use the mark whether with or without any indication of the identity of that person , and includes a certification trade mark or collective mark:
The procedure for registration of trademarks has been defined under section 18 to 26 of the Trade Marks Act,1999 and Rules 25 to 62 of the Trade Marks Rules, 2002. Section 18(1) of the Trademark provides that
– any person claiming to be the proprietor of a trade mark used or proposed to be used by him, who is desirous of registering it, shall apply in writing to the Registrar in the prescribed manner for the registration of his trade mark.
We will summarize the registration process in more detail, in our next post.