If you are thirsty for huge fortune by marketing your own intellect in this imitating world, then let yourself know about trademark. Trademark is one of the branches of intellectual property. Intellectual property refers to the creation of the mind i.e. inventions, literary and artistic works, and symbols, names and images used in commerce. Trademark is a sign that gives an identity to the goods or services of a given enterprise and distinguishes them from other. It is a recognizable insignia, phrase or word or symbol that denotes a specific product and legally differentiates it from other products of its kind. Trademark registration provides prima facie evidence and certifies the ownership and validity of goods or services.
Trademarks have been used to maintain the desirable level of quality – be it good or bad. It acts as a tool of communication for producers to attract consumers. It is a mark that helps you to either return to a desirable product or service or to avoid it.
Trademarks may be one or a combination of words, letters and numerals. It may include various non-conventional signs like shapes, smells, and sounds, moving images, taste, colour and even texture. Trademarks such as HP, Coca Cola, Nike, Adidas, etc. serve as an indication of origin and quality of the goods. With the advent of technology we find new forms of trademark, such as hologram mark. If you look at a credit card, you will see a small image that changes according to the angle from which you look at it. So, there is a huge diversity of signs that can be used as a trademark.
The concept of trademark is not new, it existed in the ancient world. As long as 3000 years ago, Indian craftsmen used to engrave their signatures on their artistic creations before sending it to market. The importance of trademark law in commercial activities increases day by day because of the globalization of trading activities. Thus, it becomes essential to integrate the trademark law and policy.
To register as a trademark it is essential that the trademark must be distinctive and should not be deceptive. To be distinctive its very nature is able to distinguish goods and services. Such as the word “blackberry” which is a very distinctive trademark for a mobile, because it has absolutely nothing to do with mobiles, it would not be distinctive for actual blackberry.
A deceptive trademark would be one that says that the goods for which it is used have specific qualities but they don’t. An example would be the trademark of an ice cream branded “VANILLA SNOW” but flavoured chocolate. The period of protection of trademark varies, but a trademark can be renewed indefinitely upon payment of corresponding fees. Trademark protection ensures that the owners of marks have the exclusive right to use them to identify goods or services, or to authorize others to use them in return for payment. It can be bought and sold. Famously, Nike, Inc. purchased the instantly recognizable Swoosh logo in 1971 from graphic designer Carolyn Davidsona for a one-time price of $35. Trademarks can also be licensed to other companies for specific time or under certain terms and conditions. It may be granted to anyone who can certify that their products meet certain established standards. Some examples of internationally recognized certification are “ISO 9000” quality Standards and ecolabels for products with reduced environmental impact.
As you know, there are many companies which intend to take unfair advantage of those well-established marks by creating marks that are identical with the well-known ones, thus misleading consumers. To overcome this problem, the TRIPS agreement, the Paris convention, as well as many national laws comes to provide for a special protection. The law pertaining to trademark has a long and vast history of more than two hundred years. In 19th century first modern trademark laws emerged. In France, the first comprehensive trademark system "Manufacture and Goods Mark Act" was passed in 1857. In India, the Trademark law is governed by Indian Trademark Act, 1999. Its protection is legally enforced by courts, which has the authority to stop trademark infringement. It acts as a blockade against the unfair competitors, such as counterfeiters, to use similar distinctive signs to market inferior products or services and boost the producers to generate more original products or services and earns more.
The trademark law ensures extraordinary protection to trademarks that are well known and established and safeguards them from infringement or passing off.
BY MD. ALI IMRAN, Law student, Jamia MIllia Islamia, New Delhi
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