Introduction to Intellectual Property Right: Trademark
By Sambhav Badkul
The Significance of Intellectual Property Rights
The modern era is the era of innovation, there is so much development in the world as science and technology develop, but along with this, as every coin has two sides in a similar way, there are positive and negative aspects to everything. Hatred and jealousy were also developed by one human being for another human being. Intellectual property rights are the rights given to inventors to protect their innovation from others who may try to steal it. Intellectual property rights are basically the intangible rights that exist in the mind of the creator and are then converted into tangible assets. These are the original creations of the human mind. There are various remedies available in cases of IPR (intellectual property rights), such as an injunction, a claim for damages, a return of profit gained, etc.
Trademarks in the Indian Economic Context
As India is a developing country focusing on generating employment, improving efficiency, and developing the economy, it introduced a new economic policy in 1991, which has led to liberalization, privatization, and globalization due to it heavy competition started in the market. Sole proprietorship became an inappropriate form of business considering the development of the economy, so the partnership form of business started, which was governed by the Indian Partnership Act 1932, but then the need was felt to increase it to a greater extent, so the company form of the business also started, which was governed by the company’s Act 2013.
Definition and Purpose of Trademarks
In order to distinguish one firm, industry, or company or product or service manufactured by them from others, there is a need for the development or introduction of a trademark. In simple words, we can say that a trademark is the sign, symbol, design, representation, etc., or combination of these given to a particular company, firm, or industry for its product to distinguish it from another company, firm, or industry or the products manufactured by them.
Legal Protection and Registration of Trademarks
Trademarks give the owner the exclusive right to use that sign, symbol, representation, design, image, or a combination of these to represent their product or a company, industry, or firm, but to avail of these benefits, it needs to be registered; otherwise, there is only one remedy left, which is the passing off, a remedy in tort. In passing off, you have to prove things like your representation gets impacted, there has been a misrepresentation, and an injury and loss occur. In passing off, the burden of proof is on the plaintiff. A trademark, once registered, is valid for 10 years, which can be renewed. Six-month prior notice was given before cancellation of the trademark was given to renew it; otherwise, the whole process of registration needs to be started again. One trademark cannot be used for two businesses. Due to trademarks, others are excluded from using the same sign, symbol, image, representation, etc. In simple words, trademarks give unique identification to things.
Types of Intellectual Property Rights
Trademarks are one of the types of IPR (intellectual property rights), but there are many other types of IPR, such as patents, copyrights, geographical indications (GI), etc.
Trademark Infringement and Distinctiveness
A trademark may infringe if it confuses people to identify it, or affects business, etc. It was given as a distinctive good, and for it, the test of Abercrombie formulation was used. A trademark is not given for genetic terms except if people identify it by you only, but it can be given for an arbitrary or fanciful name such as Yamaha or Apple. While granting the trademark, the descriptiveness and suggestiveness of it were also seen. An unregistered trademark is donated by capital TM, an unregistered service mark by capital SM, but if it was registered, it has capital R in the circle along with the above sign.
Trademark Registration Process
There is a process that needs to be followed for the process of registration of the trademark. It starts with making an application to the registrar, who will grant the trademark. If the registrar does not grant the trademark or rejects your application, you can file a review petition within 30 days of the refusal notice. If it is also rejected, an appeal can be made to the IP (intellectual property) Appellate Board, then to the High Court, and finally to the Supreme Court. An IP Appellate Board case must be filed within three months of dismissal from the registrar
Grounds for Refusal of Trademark Registration
There are various reasons to refuse the registration of the trademark, which can be broadly divided into two parts:
- Absolute Reasons: The absolute reasons include reasons such as no distinctive character, the name being the same as the geographical origin of the good, the name of a custom, a confused public, a religious name, a scandalous or obscene name, the name being prohibited under the Emblems and Names Act 1950, if the product is given the name of the shape only and the name is the same as the good, etc.
- Relative Reasons: The relative reasons include reasons such as that the same name has already been registered or used, or that it is similar to a well-known trademark, etc.
Trademark Classes and Infringement Rules
The Intellectual Property Act has 45 classes of goods. If goods are of different classes, no suit can be filed for trademark infringement; only passing off suits can be filed. But there is one exception to this rule: if it is a well-known trademark, a suit can be filed. For example, if a phone is made by a company called Kribell and a pressure cooker is made by another company of the same name, Kribell, both phones and the cooker belong to different classes, so no trademark infringement suit can be filed, but a passing off suit can be filed.
Likelihood of Confusion and Trademark Act 1999
A trademark is governed by the Trademark Act of 1999. Section 11 of the Trademark Act 1999 clearly states that a trademark shall not be registered if, because of its identity or similarity, there exists a likelihood of confusion on the part of the public. To see whether it causes confusion or not, it does not require launching a product to see whether it creates confusion or not; its permission can be refused even before granting it. It is often believed that there is no difference between an identical or similar trademark, but there is a great difference between both. An identical trademark means exactly the same or exact copy of a product, whereas in a similar trademark, there is a little difference in both products, but in both cases, a trademark infringement suit can be filed.
Principles for Comparing Trademarks
There are some main principles that need to be kept in mind while comparing the trademarks. These include viewing it from the perspective of a person of average intelligence and imperfect collection, seeing the overall structure or visual phonetic similarity, which is likely to cause confusion, and considering the trademark as a whole; no letter-to-letter comparison is allowed.
Types of Trademarks
There are various types of trademarks, such as traditional trademarks, non-traditional trademarks, inherently descriptive marks, service marks, trade dress, collective marks, certificate marks, etc. Let us look at various types of trademarks briefly, one by one. Traditional trademarks are words, logos, combinations of these, etc. that are traditionally used to describe the product, company, firm, or industry, whereas non-traditional trademarks are appearances, motion, shape, sound, scent, smell, taste, touch, etc. that were not traditionally used to describe the product, company, firm, or industry. The service mark is the same as a trademark, but it is available for services only. Trade dress is the identifying element that helps to identify the product due to its design or look; it helps to distinguish one product from another. Collective marks are the trademarks used by a group of people, a company, a firm, or an industry collectively, as they have particular characteristics in common. Certificate marks specify the origin, material quality, accuracy, etc.; they certify the origin of the product or specific features of it.
Conclusion
Thus, intellectual property rights, including trademarks, play a crucial role in safeguarding the creations of the human mind. In the context of India’s evolving economic landscape, the adoption of trademarks has become imperative for distinguishing products, fostering growth, and protecting the rights of innovators. The process of trademark registration involves adherence to legal procedures, and the refusal criteria, whether absolute or relative, aim to maintain clarity, prevent confusion, and uphold the uniqueness of each intellectual creation. As we navigate the complexities of intellectual property, it is essential to recognize the multifaceted nature of trademarks, encompassing traditional and non-traditional forms, service marks, trade dress, collective marks, and certificate marks. In essence, trademarks not only provide exclusive rights but also contribute to the identity, reputation, and distinctiveness of products and services in the dynamic landscape of the global market.
About Author
Sambhav Badkul is a law student pursuing a BA LLB degree and CS EXECUTIVE, Mr. Sambhav badkul is also seeking opportunities to further develop his legal skills and gain practical experience in dynamic legal environment. He is eager to contribute his passion for the law and commitment to justice while expanding my knowledge through challenging and rewarding internships.