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INTELLECTUAL PROPERTY RIGHTS

Definition, Functions and Essentials of Trade Marks

Name: Anjali Raj

Roll no: 7
PRN: 2017033800068644
Semester: VIIIth
Date of Submission: 22/02/2021
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INTRODUCTION
Intellectual Property Rights help people to assert ownership on their creativity and innovations in
various fields. There are various kinds of Intellectual Property Rights and one of them being Trade
Marks. To obtain trade mark protection, a word, phrase, logo, symbol, shape, sound, fragrance, or
colour must be used in commerce by a producer to identify goods, and it must also be distinctive.
Exclusive rights to a trade mark are awarded to the first producer to use it in commerce. The second
requirement of distinctiveness encompasses four traits: arbitrary/fanciful, suggestive, descriptive, and
generic. Hence, Trade mark capacities as an indicator of source and recognizes and recognizes a decent
or administration, empowering buyers to determine the nature of good or administration dependent on
the Trade Mark. Trade Mark extraordinarily and essentially influence the monetary, commercial and
financial advancements of a country in the contemporary period of Globalization. After the Industrial
Revolution the significance of Trade Marks in the financial field is expanding step by step and it is all
around perceived by all. The legitimate utilizing of Trade Mark gives assurances to the quality and
notoriety of the merchandise and ventures in the business World. The fundamental goal of Trade Mark
is to ensure and get altruism of the makers, providers and merchants as per their merchandise or
administrations. The trade mark shields the purchasers from disarray at the hour of buying a decent.
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DEFINITION
A trade mark is a particular sign or pointer or the like which is utilized by an individual, business
association or other lawful element to interestingly recognize the wellspring of its items and/or services
to customers, and recognize its item or services from those of different entities. A trade mark is a
device which can take practically any structure, as long as it is equipped for recognizing and
recognizing explicit products and services.

Trade Mark is design, symbol, word or phrase that identifies the sources of your products and
distinguish them from the products of other companies.

Section 2 (1)(m) “Mark” includes a device, brand, heading, label, ticket, name, signature, word,
letter, numeral, shape of goods, packaging or combination of colours or any
combination thereof.
“Trade Mark” means a mark capable of
Section 2(1) (zb) of TRADEMARKS ACT, 1999 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.
Section 2 (zg) “A well-known trade mark” in relation to any goods or service, means a mark
which has becomes so to the substantial segment of the public which uses such
goods or receives such services that the use of such mark in relation to other goods or services would
be likely to be taken as indicating a connection in the course of trade or rendering of services between
those goods of services and a person using the mark in relation to the first mentioned goods or services.

Section 2 (1) (g) “Collective Mark” means a trade mark distinguishing the goods or services of
members of an association of persons not being a partnership which is proprietor
of the mark from those of others.

Section 2 (1) (e) A certification trademarks are those that are capable of distinguishing the goods
or services in connection with which it is used in the course of trade and which
are certified by the proprietor with regard to their origin, material, the method of manufacturer, the
quality or other specific features.
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s
A trade mark might be assigned by the accompanying symbols:

For a registered Trade Mark

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 proprietor
to use the mark.

For an unregistered Trademark, that is, a mark used to promote or brand goods.

For unregistered Service Mark, that mark used to promote or brand

services.

ESSENTIALS
Besides possessing a distinctive trade mark, it should possess the following attributes:
• It should be a mark
• It should be short
• It should be attractive to eyes and be unique
• It should be easy to pronounce and remember, if the mark is a word.
• It should be capable of being represented graphically:
Trade Mark registrations are unmistakable to the goods or services they address. Trade Mark
will empower separation of their item against the results of their competitors. purchasers
remarkably distinguish products conveying various Trade Marks, accordingly making a
purchaser base for their product.
• The trade mark should be capable of being described in a single word.
• It should be capable of distinguishing the goods or services of one person from those to others.
• It should be of such a character, which makes it spell correctly and write legibly
• It should satisfy the requirement of registration.
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FUNCTIONS
The capacity of trade mark is to offer sign to the purchaser or conceivable purchaser with respect to
the manufacture or nature of merchandise. It gives the purchaser an acceptable affirmation of the make
and quality of the product he is purchasing. The generosity of the item is likewise reflected through its
Trade Mark.
We may arrange the functions of a trademark in the accompanying classifications:
• It identifies the product and its origin.
E.g.: Trade name Videocon signifies the electronic products produced by Videocon Company
of India.
• It guarantees its established quality.
E.g.: Quality of Sensodyne toothpaste is well-established. A purchaser of Sensodyne
toothpaste is assured of its quality.
• It is a means of advertisement of the product, every company who wishes to popularize its
products among public has to give its product a trade name and then create its brand value.
E.g.: Pears is a popular soap brand.
• It creates an image in the mind of the public.
E.g.: Hide and Seek / Moms Magic creates an impression and image about the quality of
confectionary and biscuits sold by the company.
• It signifies all the goods bearing a particular trade mark come from a single source.
E.g.: Reliance
IMPORTANT CASE LAWS
A. TEST OF SIMILARITY:
Mohd. Iqbal v. Mohd. Wasim: It was held that is common knowledge that ‘bidis’ are being used
by persons belonging to the poorer and illiterate or semi-literate class. It cannot be expected of
them that they would comprehend and understand the fine differences between the two labels,
which may be detected on comparing the two labels are common. In view of the above, there
appears to be a deceptive similarity between the two labels
B. INFRINGEMET:
Paypal v. Paytm: PayPal has accused PayTM of copying its logo to grow its own user base. The
US-based e-wallet, a pioneer in digital transactions, claims that PayTM had no other reason to use
the same two-tone colour scheme in its trademark infringement complaint with the Indian
Trademark Office. As it comes at a time when PayTM is enjoying massive gains from the
demonetisation of large notes, the complaint does seem rather opportunistic; however, this is not
what the courts will be analysing. And though the colours of a logo may not mean anything to the
common observer, smaller matters have been at the centre of trademark infringement cases in the
past. And, as we shall see, with very good reason.
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CONCLUSION

At last, we could presume that Successful entities regularly go through a lot of cash and human hours
developing generosity around their products and benefits and don't need others to profit by this.
Restrictive utilization of their trademark empowers development of this goodwill. Without exclusive
use or if nothing else controlling who can utilize it, the estimation of a trade mark can rapidly get
weakened and diminishing the estimation of the brand. they hold elite rights to stamp their products,
with nobody else being permitted to utilize their symbol, name, or motto in that specific locale. Thus,
Trade Marks give assurance to the both manufacturers and purchasers, making them a significant piece
of running an effective company and production. Thus, guarantees that purchasers won't be mistaken
by brands for comparable names and you will get all the advantages of your persistent effort. Having
select privileges of their trade mark additionally gives them an option to make a legitimate move
activity individual utilizing same or comparative brand names or logo to hoodwink individuals. At that
point, trademark goes about as a significant device in brand advancement and brand acknowledgment.
Trade Mark is additionally a resource for your business which can last work interminability. Likewise,
since it is a resource, they can take a credit against it. This shows how important resource Trade mark
can be. A Trade Mark registration thus fundamentally ensures manufacturer their “generosity". That
is the way individuals perceive their productions and services.
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REFERENCES

1. https://www.vakilno1.com/legal-news/trademark-law-in-india-in-a-nutshell.html
2. http://studymaterial.unipune.ac.in:8080/jspui/bitstream/123456789/3035/1/Trademark%20la
w%20in%20india-Overview-PDF.pdf
3. https://www.youtube.com/watch?v=dPsZjDucE0o
4. https://www.youtube.com/watch?v=cTkGJbhwNWQ