TRADEMARKS
TRADEMARKS
Trademarks are unique symbols, designs, or names that a business uses to identify its goods and that are not allowed to be used by another business. A recognizable symbol, design, or expression that identifies a good or service as coming from a specific source and sets it apart from others is called a trademark. A person, company, or other legal body may be the owner of a trademark.
Both service marks and trademarks may be referred to by the same term. A service mark is used for services, and a trademark is used for commodities.
You may use a symbol with your trademark each time you use it. Customers and rivals can tell who owns the trademark thanks to the emblem. Even if you haven’t submitted an application to register your trademark, you are still permitted to use “TM” for products and “SM” for services.
Use a ® with your trademark after registering it. Although most trademark owners use the registration sign in a superscript or subscript fashion to the right of the brand, you are free to use it wherever around the trademark.
A prevalent misunderstanding is that possessing a trademark entitles you to the exclusive use of a specific term or expression and the power to stop others from using it. You only own the right to the word or phrase as it relates to your particular goods or services; you are not entitled to use it generally.
TRADEMARK REGISRATION IN INDIA
The Trademark Act was passed in 1999, following the establishment of the trademark registry in 1940. The Act’s operational or functional body is currently the trademark registry. The trademark registry is an operational entity that carries out the regulations stipulated in the trademark legislation of India.
The trademark registry has branch offices in Delhi, Ahmedabad, Chennai, and Kolkata in addition to its head office in Mumbai. A trademark is first submitted to the Trademark Registry after being registered under the Trademark Act of 1999. In this procedure, the registrar will verify that the registering mark satisfies all Act requirements prior to registration.
The owner of a trademark may submit an application to register it. Once the trademark is officially registered, the person whose name appears as the applicant on the Trademark Registration form will be recognised as the owner of the property. Any person, business, or limited liability partnership (LLP) may apply and submit an application for the registration of a certain trademark.
Don’t forget to select a special mark that will symbolise your business. Determining which class you are in is the other crucial factor. The trademark can now be registered under 45 classifications of products and services. Classes 35–45 are for services, and classes 1-34 are for products.
It is advisable to perform a trademark search after selecting your mark to see if it is identical to one that has already been registered. You have two options for doing this: either visit the Controller General of Patents, Designs, and Trademarks’ website online. There is a public search option available on the website. After selecting this option, you must select your class and search the online database.
A set of rights, including the exclusive right to use the mark, are granted to the registered trademark owner following registration and approval by the Trademarks Registry. Any mark that has been lawfully registered under The Trade Marks Act, 1999 is considered a registered trademark in India.
The rights of the registered owner are legally protected by registration, and he or she can sue for infringement and seek damages from the party using their trademark without authorization.
UNREGISTERED TRADEMARKS
Unregistered trademarks are those that have not been formally registered with the government or trademark office. This type of trademark is still protected by common law, and its owner can still use it; however, they are not eligible for all the benefits and protections associated with trademark registration. It is important to know that a trademark that is not registered may be more challenging to protect and defend against infringement.
Unregistered trademarks are not subject to infringement lawsuits under the Act, although they are nonetheless protected under the common law tort of passing-off. The owner must show that the unregistered mark has a comparable goodwill or reputation about the good, service, or business that it is linked with in order for the case to be successful.
Therefore, the owner of an unregistered trademark may be able to prevent a third party from using their mark infringingly under the common law tort of passing off. The prohibition against passing off is based on the idea that “a man may not sell his own products under the pretense that they are the property of another man.” One kind of unfair trading is passing off.
INFRINGEMENT OF TRADEMARK
According to Section 29 of the Trademarks Act, 1999, trademark infringement is the use of a mark in connection with goods or services for which a trademark is registered, whether by an authorised or unauthorised party, or by a third party not related to the registered proprietor. To put it simply, it is the infringement of exclusive rights associated with a registered trademark, done without the consent of the registered owner or licensees. Courts have repeatedly assumed that public misunderstanding is caused by similarities between two marks and the type of products and services. They might unfairly benefit from the registered trademark’s well-earned reputation. It must be demonstrated that the infringing trademark is either confusingly similar to or identical to the registered trademark in order to successfully prosecute someone for trademark infringement.