The word, trademark means legally registered or established for representing a company or product. When competition is spurting in every nook and cranny of the world, it becomes almost essential to differentiate our goods or services from others present in the world. India has emerged as the third largest base for start-ups in the world, according to the NASSCOM Start-Up Ecosystem Report, 2015. The strife to stay in the market makes one cautious about his products. Trademark Registration concept to Indians may be quite new, but it is interesting to know that about 3000 years ago, Indian craftsmen did engrave their signature on their artistic creations. With the advent of globalization and interconnectedness, trademark laws have fastened their grip over the Indians.
The Trade Marks Act in 1940 was the first legislation with trademarks was which was similar to the UK Trade Marks Act, 1938. As time elapsed, it was seen that the act was inept to meet the requirements of the society. Thus, the Trade and Merchandise Marks Act, 1958 was enacted which was finally repealed by the Trade Marks Act, 1999. This act was in compliance with the provisions of the TRIPS. It provides a platform for the registration of trademarks of goods and services, thereby, providing the exclusively identifying the product with its manufacturer and thereby also providing the manufacturer relief in case of infringement of his trademark.
This mark basically identifies the origin, material, quality, and characteristics of goods and services offered by a manufacturer/dealer from his competitors. They are also used to assess the worth of labor in manufacturing goods or services.
These marks differentiate the members of a collective group, which can be a cooperative organization or an association.
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What cannot be a trademark?
Trade Marks Act, 1999, sections 9 and 11 give the grounds for refusing a trademark. Section 9 mentions the absolute grounds and section 11 provides with the relative grounds for refusal. Mentioned below are the grounds for refusal in India –
- Devoid of distinctive Nature – The measure of being unmistakable has been deciphered broadly in the Indian law. The sign of an item or administration which isn’t of an unmistakable sort would not be a trademark. The enrollment of unmistakable trademarks is precluded under Section 9(1)(b) of the Trade Marks Act, 1999 except if they are particular.
- Names / Surnames – Names or surnames cannot be used as a trademark in India if they do not possess a distinctive character. Also, if such names are used dishonestly, they would not be given the status of a trademark.
- Numerical – Numbers can’t be said to selectiveness to be utilized as a trademark, as such. In specific cases, the courts in India have reasoned that numbers don’t have a particular nature connected to them, consequently, not fitting the bill to be a trademark.
- Geographical Location – Geographical locations cannot be used as trademarks. In Imperial Tobacco Company of India Ltd v. Enlistment center of Trademarks, AIR 1968 Cal 582, the Calcutta High Court held that “the trademark “Simla” with the name is composite in character. It is a notable hill– station of India. Its geological implication is, subsequently, plain and unequivocal.”
- Color – The Trade Marks Act does not specifically refuse the usage of color. In any case, Indian Registry and Courts don’t incline toward utilizing hues as trademarks, for the reasons that the accessible stock will be drained and the courts will be heaped up with cases.
- Sound – Melodic notes as melodic documentations are acknowledged as trademarks in India, yet clamors, for example, pooch woofing can’t be a trademark.
- Smell – Smell cannot go through the process of Trademark Registration in India. It is difficult to distinguish between different smells.