- 1 Introduction
- 2 The International Status of Trademark System
- 3 Indian Trademark Law in Comparison with US and EU
- 4 Origin and Development
- 5 What Constitutes a Mark
- 6 What constitutes Use
- 7 Position in EU
- 8 Position in the US
- 9 Dilution
- 10 Conclusion
The trademark has the protection of Intellectual Property Rights. WIPO had defined trademark as a symbol which is capable of distinguishing the goods and services from one individual or enterprise to another.
We can say that a trademark is a visual symbol or distinctive mark or design which is used by an individual or company. The trademark helps the consumer to identify the products and services of a particular company or organization.
The main function of the trademark registration is the identification of goods and services from other competitors and other companies, signifying the source of goods, signifying the quality of goods and advertisement of goods. Also, trademark protection prevents the use of fraudulent marks. With the increase in development in trade and commerce in the era of globalization, the trademark has acquired the need for goodwill and reputation of consumers.
The International Status of Trademark System
All the countries have equivocally accepted the eight fundamental principles of trademark protection to fulfill the objectives and aims of the trademark and in consonance with its functions.
The Eight Fundamental Principles governing each of other countries including India, USA, and EU are as follows –
- Usually learning that trademark enlistment presented upon the proprietor an imposing business model ideal to utilize the concerned check. Be that as it may since no privilege can be outright a few limitations are to be forced on the utilization of specific classes of words/images/different portrayals as imprints.
- It ought to be kept up that the enlistment of a trademark ought not to meddle with its real use by people who mean to utilize it in the normal sense and common purposes.
- Since property rights in a trademark are procured by the utilization of predominant and comparative rights got by enrollment, earlier clients of a trademark ought to be secured against any imposing business model right.
- The two principle intrigues which are to be ensured are – the enthusiasm of people in general, so the stamp to be enlisted does not delude the general population; and the enthusiasm of the current brokers who may protest if the check is equipped for being mistaken for existing imprints. Comparative perceptions were made by Lord Diplock – “It has been held up on grounds of open arrangement that a broker should not be permitted to get by enlistment under the Trade Marks Act a restraining infrastructure in what different merchants may truly want to utilize.”
- Since it is additionally a matter of open approach, any open who wishes to protest the giving of enlistment to any trademark must be permitted to give his complaints along reasons
- It must be contemplated that circumstances may emerge where a dealer has been utilizing a specific trademark for a considerable length of time despite the fact that a comparable check is enrolled. Such a broker who has not enlisted his trademark but rather has been utilizing it genuinely and in compliance with common decency ought not to be denied of the advantages of enrollment simply on the grounds that he has not enrolled. Such enrollment is to be liable to certain appropriate confinements and conditions.
- The trademark ought to be put to consistent utilize. Halting its utilization will bring about it’s possible passing as there will be no evenhanded or coherent premise of proceeding with the security of such a trademark.
- A trademark is a licensed innovation. The term ‘proprietor of a trademark’ is along these lines utilized as a part of its definition making it both assignable and transferable like some other property. In any case, attributable to its tendency, this sort of property can’t be allocated or exchanged without sticking to specific conditions and confinements.
Indian Trademark Law in Comparison with US and EU
In light of the eight fundamental principles mentioned above, it is clear that be it India or the US or the EU, all three countries have made trademark laws adhering to these principles only. However, their structure and implementation in certain cases vary and this variation has been addressed hereafter.
Origin and Development
- The European legitimate routine with regards to trademark assurance has constantly centered around anticipation of a misstep, misleadings and any perplexity as to the beginning of the stamp. Insurance of open approach is, subsequently, the essential spotlight on a precedent-based law of trademark, ensuring the two purchasers and vendors. Statutes from as right on time as the thirteenth-century indicate confirmation of the nearness of medieval organizations the individuals from which could control the signs of their colleagues in order to maintain a strategic distance from perplexities thus that general society strategy was clung to. Producers were additionally offered important techniques for showcasing their products. Trademark, primarily served to show the inception, “however the character of the source might be in really obscure to people in general.”
- The trademark laws took after by the European Community were consolidated in the Community Trade Marks (CTM) in 1996 in light of the 1946 draft of the “Tradition on European Trademark Law”. The European Union spotlights on finding enrolled trademarks and does not stick to the “first to utilize” govern utilized as a part of India and the US.
What Constitutes a Mark
- In India, as per the Section 2 (ZB) of the Trade Marks Act, 1999, the meaning of trademark isn’t simply clear however thorough too. The Indian law is sure about what might be a trademark. There are no stipulations regarding what may not be a trademark.
- The Supreme Court in Laxmikant Patel v. Chetanbhat Shah  held that the meaning of trademark under Indian law is wide and implies a stamp which is fit for being spoken graphically and is equipped for recognizing the products or administrations created and gave by different people.
- It incorporates a name or a word, in short form of a word or a name alongside a shape of products, their packaging, and blending of colors.
Position in US
- Trademark law in the US is governed by the Lanham Act. Its definition of the term ‘trademark’ is very broad in its description as to what may constitute a mark. It says in Section 1127 that a trademark, includes any word, name, symbol, device or any combination thereof.
- This definition, not at all like the Indian definition, is just thorough as it isn’t exceptionally distinct contrast with the Indian definition. This influences the definition under the Lanham To act significantly more extensive than that of the Indian law. This definition is likewise very unrestrictive in nature as an image or gadget might be intended to incorporate a wide cluster of things.
Position in EU
The trademark law took after by the European Union is known as the Community Trade Marks (CTM). The CTM does not only characterize a trademark or state what constitutes a trademark. As aggregated from the different controls, a trademark registration incorporates a ‘word stamp’; and different imprints comprising of numerals, letters, and signs for which the candidate does not guarantee any exceptional realistic portrayal or color.
What constitutes Use
As has been seen previously, a trademark loses its help when it falls into non-use for a significant timeframe. In India, the enrollment of a trademark might be assaulted on the grounds of non-use under the Indian Trade Marks Act 1999. In such a case the negligible truth that the stamp is being used outside India or that the check has a global notoriety won’t be adequate to keep it from its death. In this perspective, the Indian Judiciary had given a wide significance to the term ‘utilize’.
The Supreme Court held  that the utilization of a trademark may likewise be ‘non-physical’ yet it is apropos that such utilize is ‘material’, as in, important. For example, the utilization of trademark on solicitations is considered to be ‘use’ regarding the merchandise which the stamp speaks to. However, an ad won’t be utilized under the Act, except if it is utilized as a part of the connection with the offer of a few products, similar to it was held by the Supreme Court for a situation identifying with the utilization of Toshiba Corporation’s logo in an ad in India.
Position in EU
- This test is fundamentally the same as the test under the Community Trade Marks (CTM) of the European Union where the utilization ought not to be some simple emblematic utilize. The utilization ought to be ‘bona fide’ which means the utilization ought to be real and legitimate.
- The fact of the matter is that the Indian law is considerably more extensive with regards to characterizing what constitutes ‘utilize’. The legal has been extremely dynamic in this perspective to keep the hardships of the dealers and makers.
Position in the US
The US trademark law has any kind of effect between the real utilization of a stamp and the purpose to utilize a check. Despite the fact that enlistment can be connected for by makers under the two conditions, i.e., real utilization of a check and true blue goal of utilizing a stamp, the enrollment isn’t allowed by the Patents Office except if the real utilization of the stamp has appeared and the utilization of this stamp ought to be indicated again after the fifth and sixth year and at the season of recharges keeping in mind the end goal to keep up the enlistment.
The precept of weakening is an idea curious to trademark law where if a trademark is all around rumored and well known, the proprietor can disallow others from utilizing the stamp. The US trademark law permits such a proprietor to sue any individual who utilizes his popular check whether by obscuring or by tarnishment as both of these examples would offer ascent to a reason for action against the individual who is making any such utilization of the stamp.
Being a matter of trade and commerce, capable of derailing the entire system, it is important that the nations keep a certain parity while formulating laws on intellectual property protection, and in this case, specifically trademark protection. India, US, and the EU, though a little different in their approaches to the trademark law jurisprudence have been adhering to all the important international agreements and conventions and protocols such as the TRIPs Agreement, The Paris Convention and the Madrid Protocol.
Let’s take the EU to be a single country although it is essentially a community of all the European countries. EU effectively brings an entire set of countries under its umbrella thus creating a larger harmony in the trademark statutes of the world. All three countries have incorporated the definition of a trademark, use, and so on from the TRIPs Agreement into their respective legislations. Registration procedures have been orchestrated and echoed through the Paris Convention in all three legislations. India has incorporated special provisions under the Madrid Protocol in Chapter IV-A of the Indian Trademarks Act, 1999 through the Amendment Act 40 of 2010. US and EU have also acted and enacted laws with strict adherence to the protocol.