What is trademark, types of trademark and registration procedure of trademark./Trademark act 1999.

What Is Trademark.

Trademarks Are Legally Protected Symbols, Words, Phrases, Logos, Designs, Or Combinations Thereof That Identify And Distinguish One Party’s Source Of Goods Or Services From Others.  Basically, It Is A Brand Identifier.  And Its Helps Customers To Identify About The Company And Products When They See The Trademarks.  Trademarks Play An Important Role In Branding, Marketing, And Protecting Intellectual Property Rights.

Trademark Registration Gives The Owner The Legal Right To Use The Mark Exclusively In Connection With Specific Goods Or Services.  In Addition, The Owner May Prevent The Use Of Similar Marks By Others Who May Cause Confusion Among Consumers.

Definition Of Trademark In Trademarks Act 1999.

According To Section 2(Zb) “Trademark” Means A Mark Capable Of Being Represented Graphically And Which Is Capable Of Distinguishing The Goods And Services Of One Person From Those Of Others And May Include Shape Of Goods,Their Packaging And Combination Of Colours.

Types Of Trademarks,

• Word Symbols: Consist Of Words, Letters Or Numbers That Are Usually Styled In A Particular Font.  Examples Include “Apple” For Computers And Electronics Or “Nike” For Sportswear.
• Design Mark: A Logo, Symbol Or Design Element That Represents A Brand, Such As The Right Symbol On Nike Shoes ✔️.
• Combined Symbol: Where Both The Font And Design Elements Are Together.  For Example, The Word “Macdonald’s” Coincided With Its Iconic Golden Arch Logo.
• Slogan Or Tagline: A Short Phrase Or Motto Used To Identify A Product Or Company, Such As Nike’s “Just Do It” Or Macdonald’s “I’m Lovin’ It.”
• Sound Symbol: It Represents The Sound Or Musical Jingle, Such As The Ringtone Of Nokia Mobile, Associated With A Brand.
• Color Mark: Consists Of A Specific Color Or Combination Of Colours That Uniquely Identifies A Brand, Such As The Yellow Color Of Noddels ” Meggi” Packets
• Shape Mark: Represents The Unique Shape Or Configuration Of A Product Or Its Packaging.  For Example, The Shape Of A Coca-Cola Bottle Or The Small Square Shape Of A Dairy Milk Chocolate Bar.
• Motion Mark: Represents A Moving Image Or Animation That Serves As A Trademark.  Such Motion Signs Are Especially Common In Various Software Or Mobile Apps.
• Certification Mark: It Signifies That The Goods Or Services Meet Certain Standards Or Qualifications Set By A Certification Body.  For Example The Isi Mark ‘ On Presure Cookers.
• Community Symbol: Identifies Goods Or Services Associated With A Community Group Or Organization, Such As A Professional Association Or Cooperative, Such As The Red Clothing Of People Who Deliver Food To Zomato.

Essential of a trademark.

• Uniqueness: The Proposed Trademark Does Not Encroach On Existing Trademarks Or Other Intellectual Property And Should Be Thoroughly Investigated To Ensure That The Mark Is Available What For Registration.  The Trademark Should Be Distinctive It Should Be Able To Distinguish One Merchant’s Product Or Service From Another.  The Trademark Must Not Be Deceptive Or Imply The Nature, Quality Or Geographical Origin Of The Goods Or Services.
• Ineffectiveness: An Application For Registration Must Include A Clear Representation Of The Trademark, Whether It’s A Word, Logo, Device, Symbol Or A Combination Thereof.  A Trademark Must Not Consist Solely Of Shapes Resulting From The Nature Of The Goods, Shapes Of The Goods Necessary To Achieve Technical Results, Or Shapes Giving Substantial Value To The Goods.
• Appropriate Classification: Applicants Must Specify The Category Or Categories Relevant To Their Goods Or Services.Trademark Applications Must Clearly State The Goods Or Services For Which Registration Is Sought.
• Applicant Details: The Application Should Give Accurate Details Including Name, Address And Nationality Of The Applicant. Also The Application Must Comply With All The Procedural And Substantive Requirements Laid Down In The Trade Marks Act, 1999, And The Trade Mark Rules, 2017, As Well As Any Relevant Guidelines Issued By The Trade Mark Registry.

Registration Procedure Of Trademark.

• Trademark Search: A Comprehensive Trademark Search Is Essential Before Applying For Registration As The Business Needs To Have Full Knowledge That The Proposed Mark Is Not Already Registered Or Used By Someone Else In The Same Category Of Goods Or Services Because  It Helps To Avoid Objections  And Saves Time From Being Wasted In Disputes.
• Filing Of Application: Once You Have Determined Through Research That Your Trademark Is Different From Any Other Company Or Similar Products, Then You Can File An Application With The Relevant Trademark Office.  Typically, The Application Includes Information Such As The Name And Address Of The Applicant, A Representation Of The Mark (Words, Logos, Etc.), And A List Of Goods Or Services The Mark Is To Cover.  Applications Can Be Made Online Or Offline Depending On The Jurisdiction.
• Examination: Upon Receipt Of The Application, The Trademark Office Will Conduct An Examination For Compliance With The Legal Requirements For Registration.  This Test Usually Includes An Assessment Of The Uniqueness Of The Mark, Its Similarity To An Existing Trademark And Any Other Relevant Factors.  If There Are Any Problems Or Objections, The Applicant Must Respond To Them Within The Stipulated Time Frame.
• Disclosure: If The Trademark Application Meets All The Requirements And Passes The Test, It Is Usually Published In The Official Gazette Or Journal To Give Third Parties The Opportunity To Oppose The Registration If They Believe It Infringes Their Rights.  The Duration Of Publication Varies Depending On The Area But Is Usually About 30 Days.
• Opposition Proceedings (If Applicable): During The Publication Of The Applicant’s Trademark, If A Third Party Believes That The Registration Of The Trademark May Harm Their Business, They May File An Objection Against The Registration Of The Trademark At The Trademark Office.  Opposition Proceedings Allow These Parties To Present Their Arguments And Evidence Against The Registration.  If An Opposition Is Filed, The Trademark Owner Must Answer And Defend Their Application.
• Registration: The Trademark Office Proceeds To Register The Trademark If There Is No Successful Opposition Or Objection From A Third Party.  And Grants The Owner The Exclusive Right To Use The Mark In Connection With The Specified Goods Or Services Within The Territory Upon Successful Registration.
• Maintenance And Renewal: Once Registered, The Trademark Owner Must Maintain And Renew The Registration In Accordance With Jurisdiction Requirements.  This May Involve Paying Periodic Renewal Fees And Demonstrating Continued Use Of The Mark.  In India, The Trademark Has To Be Renewed Every 10 Years.

Infringement Of Trademark.

Infringement: Section 29 of the Act deals with trademark infringement.  This section describes how trademark rights are infringed.  In general, no person or company can create a trademark to match similar products of other companies.  Such actions make it difficult for the customers of the established company to purchase the products.

Cases Related To Infringement Of Trademark.
Bata India Ltd. V. Pyare Lal & Co.: This Case Addressed The Issue Of Infringement And Passing Off Of Trademarks. It Established The Principle That A Trademark Owner Can Claim Infringement Even If The Defendant’s Mark Is Not Identical But Deceptively Similar, And If Such Use Is Likely To Cause Confusion Among Consumers.

Kaviraj Pandit Durga Dutt Sharma V. Navaratna Pharmaceutical Laboratories: This Landmark Case Laid Down The Test For Determining Whether A Trademark Is Likely To Cause Confusion Or Deception Among Consumers. It Introduced The Concept Of ‘Essential Features’ And ‘Overall Similarity’ To Assess The Likelihood Of Confusion.

Colgate Palmolive Company V. Anchor Health And Beauty Care Pvt. Ltd.: This Case Dealt With The Issue Of Deceptive Similarity Between Two Trademarks. The Court Held That The Use Of The Mark “Anchor White” For Toothpaste Infringed Upon Colgate’s Trademark “Colgate Dental Cream” As It Created Confusion Among Consumers.

Cadila Healthcare Ltd. V. Cadila Pharmaceuticals Ltd.: This Case Addressed The Issue Of Infringement And Passing Off In The Pharmaceutical Sector. The Court Emphasized That The Likelihood Of Confusion Or Deception Is A Key Factor In Determining Trademark Infringement.

Itc Limited V. Philip Morris Products S.A.: This Case Dealt With The Issue Of Well-Known Trademarks And Their Protection Under Indian Trademark Law. The Court Emphasized The Need To Protect Well-Known Trademarks From Unauthorized Use, Even If The Goods Or Services Are Not Similar.

Passing Off Trademark.

The passing off of Section 27 of the Act is a common law doctrine recognized and applied in India especially in matters relating to trade marks.  While the statutory basis for trade mark protection in India is primarily provided by the Trade Marks Act, 1999, the concept of passing off complements the statutory framework by providing protection against unfair competition and misrepresentation.

In India, passing off actions are generally brought before the courts and decided based on principles established through precedent and case law.  Successful claimants may be entitled to remedies such as injunctions, damages or accounts of profits.

Passing off not only protects registered trademarks but also protects unregistered trademarks and helps prevent unfair competition in the market.  Therefore, it is very important for businesses to know both the statutory provisions and common law principles of passing off to keep trademarks safe in India.

To Establish Passing Off In India, The Claimant Typically Needs To Demonstrate The Following Elements:

1. Goodwill and Reputation: Claimants must show that they have developed goodwill or reputation in connection with their products or services under particular trademarks or trade names.
2. Misrepresentation: The claimant must prove that the defendant has made a misrepresentation with the intent to deceive or confuse consumers , this misrepresentation may be intentional or unintentional.
3. Harm or likelihood of harm: The claimant must establish that they have suffered or are likely to suffer as a result of the defendant’s misrepresentation.  These damages can include lost sales, damage to reputation, or dilution of trademark uniqueness.

Remedies Of Trademark Infringement.

Injunction: Upon proper proof, the court may grant an injunction against the infringer, which is a court order that prevents the infringing party from further use of the trademark in question.  An injunction may be initial (temporary) or permanent depending on the circumstances of the case.
  Damages: Courts may award monetary compensation to the trademark owner for damages caused by the infringement.  Damages are generally aimed at compensating the trademark owner for lost profits, damage to reputation, or other financial losses resulting from the infringement.
 Accounting for profits: In some cases, the court may order the infringing party to disclose to the court any profits arising from the unauthorized use of the trademark.  This remedy aims to prevent violators from benefiting financially from their wrongful acts.
 Seizure and Destruction of Infringing Material: The court may order the seizure and destruction of material that infringes the rights of the trademark owner.  This remedy helps prevent further distribution of counterfeit or infringing products in the marketplace.
 Publication of judgment: The court may order newspapers or other media to publish its judgment to inform the public about the trademark infringement and the decision of the court.  This can help prevent future infringements and protect the rights of the trademark owner.
  Costs and Attorney’s Fees: To ensure that the trademark owner does not incur undue costs for enforcing their rights, the court may order the infringing party to pay the costs of the legal proceedings, including the trademark owner’s attorney’s fees.

Criminal Penalty.
The Trademarks Act, 1999 In India, Criminal Punishment For Trademark Infringement Is Outlined In Section 103 Of The Act. This Section Deals With Offenses Relating To False Trademark And False Trade Descriptions. Specifically, Section 103 States

“Any Person Who—
• Falsifies Any Trademark; Or
• Falsely Applies To Goods Or Services Any Trademark; Or Makes, Disposes Of, Or Has In His Possession, Any Die, Block, Machine, Plate, Or Other Instrument For The Purpose Of Falsifying Or Of Being Used For Falsifying, Any Trademark; Or
• Applies Any False Trade Description To Goods Or Services; Or Makes, Disposes Of, Or Has In His Possession, Any Die, Block, Machine, Plate, Or Other Instrument For The Purpose Of Falsifying Or Of Being Used For Falsifying, Any Trade Description; Or
• (F) Applies Any False Name Or Mark To, Or Packages In Any Manner Bearing A False Trade Description, Any Goods In A Manner That Is Likely To Cause Injury To The Business Or Goodwill Of The Owner Of The Trade Description,

Individuals Found Guilty Of Such Offenses Are Subject To Imprisonment For A Term Not Less Than Six Months But Which May Extend To Three Years, Along With A Fine Ranging From Fifty Thousand Rupees To Two Lakh Rupees. It’s Worth Noting That The Punishment May Vary Depending On The Severity Of The Offense And Other Factors Determined By The Court.

This Provision Under The Trademarks Act, 1999 Underscores The Seriousness With Which Trademark Infringement Is Regarded In India And Emphasizes The Importance Of Protecting Intellectual Property Rights To Maintain Fair Competition And Consumer Trust In The Marketplace.

Conclusion

A Trademark Helps To Identify A Particular Company And Business To The Public, And A Registered Trademark Helps To Provide Legal Protection To The Business.