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Originality is the essence of intellectuaL property

Posted By HIMANI on 20 Sep 2019

Intellectual Property refers to the innovation, creativity or the literary or artistic work which should be protected from copying and unauthorised usage. The Paris Convention, adopted in 1883 is related to protecting the patents, trademarks, geographical indications and industrial designs. The World Intellectual Property Organisation (WIPO) is one of the fifteen specialized agency of the United Nations Organisation (UNO) which works to encourage creativity and promote intellectual activity throughout the world.

Originality is the essence of intellectual property. The creativity needs to be given recognition and at the same time, it should be protected from duplication. Trademark is defined as the unique mark allotted to goods and services so as to differentiate it from goods and services of similar nature. For trademark protection, it must be registered. The registration of a trademark is necessary to carry out any legal action in case of infringement. It confers exclusive rights to the user of the registered trademark and to use such a trademark, the prior licence is required or payment is to be made to the proprietor of the trademark. It is important means to protect the reputation and goodwill of a business.

 The Trademark Act, 1999 is the governing legislation for the registered trademark. It complies with the terms of the TRIPS (The Agreement on Trade-Related Aspects of the Intellectual Property Rights). According to this act, Trademark has been defined under Section 2(ZB) of the Trade Marks Act, 1999 as, "trademark means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours." A mark can include a device, brand, heading, label, ticket, name, signature, word, letter, numerals, shape of goods, packaging or combination of colours or any such combinations.

Trademark is the mode of identifying the goods or services rendered and hence it plays a vital role in creating goodwill. There are certain conditions required for the registration of a trademark. For a trademark to acquire registration, it must be a mark which can be graphically represented and it should not be deceptively similar to the trademark which has already been registered. Also, it should not denote the type of service rendered or the quality of goods. The trademark registration differs, but generally, it lasts for 10 years, after which renewal of trademark is required.

A Trademark can be of various types, namely;

  1. Product Mark- It is limited to only the types of goods and does not include the services.
  2. Service Mark- This type of trademark identifies and differentiates the source of a service.
  3. Collective Mark- The collective mark is used by a group of companies and can be protected by the group collectively.
  4. Certification Mark- This type of mark is used to signify the quality of standard of products or services furnished.
  5. Shape Mark- The distinctive shape or packaging of the products which are unique can also be categorised as a trademark as long as they can be graphically represented.
  6. Sound Mark- Sound mark refers to unique music or sound played, which gives an identification for the origin or source of the product.

When an infringement as to trademark appears, the proprietor of registered trademark can file a lawsuit, which might lead to any of the following legal consequences:

  • Monetary reimbursement for losses to the plaintiff
  • An injunction requiring the defendant to stop producing/using/distributing goods with the trademark
  • Seizure of goods that use or incorporate the unauthorized trademark

Intellectual Property needs to be protected it is the labour of the mind and is the outcome of one’s intellect. It requires prior consent for the usage. Trademark is one such Intellectual Property, which needs to be registered and needs prior authorization from the proprietor before using it in the market.



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