In India, the Trademark law is governed by Indian Trademark Act, 1999. Trademark is basically a sign or mark by which the trader or manufacturer or service provider distinguishes his goods or services from that of others.
Trademark is like a property which is entitled to protection under law. Thus me law which defines the right of trademark holder and which protects his rights from being infringed is Trademark law.
The law pertaining to trademark has a long and vast history of more than two hundred years. The first Act concerning trademark was established in the year 1883 in England. However due to some loopholes it was repealed by the Trademarks Act of 1905.
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The 1905 Act contained major portion of 1883 Act. The 1905 Act was further amended in 1919 and 1938. In India there was no special law governing Trademark before 1940. The affected people used to take recourse to Specific Relief Act and Indian Penal Code.
The first pure law concerning trademark was established in the year 1889 which was followed by Trademarks Act, 1940. But with the rapid growth in commerce and industry there was an immediate requirement to amend the laws of 1940 Act.
Thus the Parliament of India passed the Trade and Merchandise Act in the year 1958. Almost for 41 years the Act remained in force but with the passing of time and to fulfill the obligation under TRIPs agreement a need was felt to introduce new rules and regulations concerning Trademark which ultimately led to the enactment of Trademark Act, 1999.
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The Indian law of trademarks is enshrined in the Trade Marks Act, 1999. The Act seeks to provide for the registration of trademarks relating to goods and services in India. The rights granted under the Act, are operative in the whole of India the distinctive sign or indication which is used for signifying some kind of goods or/and services and is distinctively used across the business organization or by an individual for identifying and uniquely classifying the source or their products and/or services among consumers and making a distinction of its products or services from the other entities.
One of the part of the intellectual property law, trademark signifies to the name, word, phrase, logo, image, design, symbol or combination of any or all of ties elements.
The trademark grants rights to the owner which in turns take or can commence legal proceedings in case of infringement of trademark. However registration is not compulsory in trademark.
The owner of common law trademark can also file the suit but in case of the unregistered mark, the protection granted will only be confined only to that geographical area within which it has been used or in that area into which it is expected to be expanded.
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Informally the term ‘trademark’ is used for distinguishing those characteristics or attributes which helps in identifying any individual. When the word ‘trademark’ is used in context of services rather than products, it may call service mark.
When the trademark is used for describing the product or service, instead of making a distinction from the third parties then it is popularly called generalized trademark. As any sign which is attributed of doing the essential required functions of the trademark may be headed under the term ‘trademark’.
It may include various non- conventional signs like shapes (three dimensional trademarks), smells, and sounds, moving images, taste, color and even texture. The extent to which these non conventional trade marks are recognized or even protected varies from one jurisdiction to another.
The trademark owner is conferred upon the ‘exclusionary rights’ which says that the owner enjoys the right of using the registered trademark and can indicate it by using the symbols- and in relation of those goods and services for which the owner has registered the trademark.
At the time of any infringement, the owner can take upon the case in the court. Trademark provides the guarantee for the unchanged quality and helps in creating and advertising the products and services in public.
Due to the increasing globalization of trading activities, it becomes necessary to integrate the trademark law and policy, nucleus of which must be constancy in its various activities.
The following trademark laws have candidly enabled the industrial market across the world to save their time and resources by allowing the centralized filing system and completion of various procedures related to it.
