12/8/22, 12:50 PM What is a Trademark?

register a private limited company, benefits of registering a company, difference between llp and privat…

Vyapaar Pundit Sep 3, 2021 5 min read

What is a Trademark?
Corporate firms around the globe have been consistently outstanding with their fellow competitor entities
with watermarks and logos until the market surged astoundingly. Legal systems and businesses needed an
absolute distinction in terms of their fine plan and design along with offered services and products.

Exordium of Trademark

Trademark defined under Section 2 (zb) of the Trade Marks Act, 1999 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 colors."

TRIPS Agreement (International agreement between the member nations worldwide regarding intellectual
property rights) for protection of trademarks comprises legal protection to dissimilar trademarks, recognition
of service marks, dynamic renewal of registration, abolition of compulsory licensing of trademarks. The statute
law of trademarks in India was governed by the Trade and Merchandise Marks Act 1958. This Act was replaced
by the Trade Marks Act, 1999. This part on Trademarks is based on the new Act of 1999.
The following Act of 1999 with ensuing amendments comply with TRIPS and furthermore lies in conformity of
internationally accepted standards of practices and laws.

Trade-marks-act 1999.pdf
Download PDF • 246KB

Why Trademark?

Trademarking a brand name keeps others from utilizing an organization’s or person's items or
administrations without their consent.
Trademark is highly preferable in shielding your brand presence and uniqueness as it will inhibit
growth of any other business trying to impersonate corporate methodologies especially in cases of
similar services/products manufactured.
Trademarks can be bought and sold. For instance, Nike purchased the instantly recognizable Swoosh
logo in 1971 from a graphic arts student for a one-time price of $35, Investopedia states.
Trademarks are additionally utilized as a powerful method to advertise brand names.

Truth be told, the force of branding in business is basic and can fill volumes, and the utilization of brands in
promoting and advertising is incredible.

Trademark : A Global Approach

Trademarks help give special recognition to the ownership of a brand. It can be a symbol, phrase or a word
that lawfully distinguishes the product/service. According to the World Intellectual Property Organization,

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12/8/22, 12:50 PM What is a Trademark?register a private limited company, benefits of registering a company, difference between llp and privat…

Indian craftsmen used to engrave their signatures on their artistic creations before exporting them to foreign
lands.
The purpose of a trademark is to make a consumer believe in the goods/services of the enterprise, not known
to him, being accountable for the genuineness and authenticity of the same.
Nearly all the nationalities round the globe provide their industries with trademark registration. However, in
the countries where trademark was a conventional approach, trademark registration does not give the owner
the ultimate assurance. Rather, the first user of a particular trademark gets the priority in a trademark conflict
due to acquisition by use. The United States of America, the Philippines, Indonesia and all countries with
systems of law on the traditional British model (Hong Kong, India, Singapore, etc.) have taken the same
approach into consideration.

Functionalities and Dynamics of Trademark

The source depiction and additionally recognizing capacity of the trademark is the reason for its
legitimate assurance.
However the brand name does, obviously, have different capacities: as of now referenced, customers
can for the most part depend on the predictable nature of the merchandise offered under the
trademark.
This is alluded to as the Quality function or the Guarantee function.
Trademarks are not only used for marking goods under ownership of a specific enterprise but also
efficiently used in advertising.
Consequently, the trademark by its acquired reputation, becomes a valuable asset to the owner who
can further license or franchise it.

Thus, a trademark not conforming to its ability to legally differentiate the goods/services for a firm, but also
can be of economic importance that does not depend on the trademark laws but on the commercial use of it
by the enterprise.

Trademark Your Brand

Trademark registration can be done by applying under the Trademark Registrar under whose jurisdiction the
applicant’s business firm falls. However, it is very necessary to ensure that the applying firm’s trademark does
not resemble the already registered trademarks or prohibited ones.

Application for Trademark may be made on FORM TM-1 with the nominal fee requirements at one of
the following Trade Mark Registry Offices located at Delhi, Mumbai, Kolkata, Chennai and
Ahmedabad.
After being successfully examined on the set criterion without any oppositions, certificate of
registration is issued. In situations of otherwise, an applicant can appeal to the Intellectual Property
Appellate Board which is an administrative tribunal.

Infringements : Safeguarding Trademarks

Use of an already registered trademark on goods other than those arising out of ownership of that particular
trademark is an act of infringement. Any third party indulged in selling goods/services under a lawfully claimed
trademark is liable to a punishment for a time period of 3 months to 6 months followed by a hefty fine of INR
50,000 which can be extended to INR 2,00,000.
When we take protection of a trademark into consideration, it not only confines to words, phrases or any
symbols but also with other factors like packaging and assigned color code. Trademarks make it feasible for
consumers to instantly rule out the source of a given good. For example, rather than dedicating time to fine
print of cola cans, consumers can look for the Coca-Cola trademark. Instead of asking a store clerk who made
a certain pair of sneakers, consumers can look for specific symbols, such as a swoosh or a unique pattern of
stripes.

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12/8/22, 12:50 PM What is a Trademark?register a private limited company, benefits of registering a company, difference between llp and privat…

By making goods easier to identify, trademarks also give manufacturers an estimate to invest in the
quality of their goods.
If a consumer tries a mainstream brand and finds a quality deficit, it will be easy for the consumer to
avoid the same product for future use and will rather switch to another brand.
Trademark laws furthers these goals by regulating the proper use of trademarks.
Chosen trademark, needless to say, falls within the concept of being arbitrary, suggestive, descriptive
and generic.
However, trademarks are given their respective distinctiveness and degree of legal protection. To
further illustrate, the famous clothing brand Mango does not resemble its underlying product/services
and hence requires a higher degree of legal protection as they fall under arbitrary trademark
category.
Similarly, trademarks are provided with their distinctiveness and legal shielding as per convenience of
the category they fall in, be it descriptive or suggestive.
Generic names are not backed by trademark laws as it might give too much edge to a set of
competitors over others.

Stance of Government of India

Indian government not only adheres to stern regulation for Trade Marks but also assists in
infringement and passing off in response to any and all sorts of violations done against the goodwill
of a registered trademark.

Section 135 of the Trade Marks Act acknowledges both infringement and passing off of trademarks.

As stated by Mondaq, The Judicial Bar of India has been proactive in the insurance of brand names,
and it has broadened the assurance under the trademark laws to Domain Names as shown in
milestone instances of Tata Sons Ltd. vs. Manu Kosuri and Ors, [90 (2001) DLT 659] and Yahoo Inc. vs.
Akash Arora [1999 PTC 201].

CONCLUSION

Trademarks not only provide legal guardianship to big corporate firms and enterprises but also offer a safe
ground for startups to protect the uniqueness to their brand. Trademarks make it easy for customers to locate
your brand in the market and serves as an outstanding communication tool garnering more customer base.
Businesses can build up their digital presence to no limits with the help of their trademarks. Apart from
proving itself as a core asset to the company, successful entrepreneurs can expand their business from one
field to another without concerning the established brand value. Such expansion only adds more and more
value to the trademark. Trademark is a critical aspect for your brand, defining your reputation and recognition
and at the same provides your brand a distinctiveness and assured legal protection.

 
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