Trademark related Important Questions-Answered: Read Now !

How is “Trademark” defined?

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 other and may include shape of goods, their packaging and combination of colours; and

1. in relation to Chapter XII (other than section 107), a registered trade mark or a mark used in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services, as the case may be, and some person having the right as proprietor to use the mark and;
2. in relation to other provisions of this Act, a mark used or proposed to be used in relation to goods or services for the purpose of indicating or so to indicate a connection in the course of trade between the goods or services, as the case may be, and some person having the right, either as proprietor or by way of permitted user, to use the mark whether with or without any indication of the identity of that person, and includes a certification trade mark or collective mark.

What are “Well-known Trademarks” and “Associated Trademarks”?

Well-known trademark in relation to any goods or services, means a mark which has become so to the substantial segment of the public which uses such goods or receives such services that the use of such mark in relation to other goods or services would be likely to be taken as indicating a connection in the course of trade or rendering of services between those goods or services and a person using the mark in relation to the first-mentioned goods or services.

Associated Trademarks means trademarks deemed to be, or required to be, registered as associated trademarks under this Act.

What are “Certification Trademarks”?

Certification trade mark means a mark capable of distinguishing the goods or services in connection with which it is used in the course of trade which are certified by the proprietor of the mark in respect of origin, material, mode of manufacture of goods or performance of services, quality, accuracy or other characteristics from goods or services not so certified and registrable as such under Chapter IX in respect of those goods or services in the name as proprietor of the certification trade mark, of that person.

What are “Collective Mark”?

Collective Mark means a trademark distinguishing the goods or services of members of an association of persons (not being a partnership within the meaning of the Indian Partnership Act, 1932) which is the proprietor of the mark from those of others.

What is the meaning of “Service” in the Trademark Act 1999?

Service means service of any description which is made available potential users and includes the provision of services in connection with business of any industrial or commercial matters such as banking, communication, education, financing, insurance, chit funds, real estate, transport, storage, material treatment, processing, supply of electrical or other energy, boarding, lodging, entertainment, amusement, construction, repair, conveying of news or information and advertising.

A trademark is a sign or mark that is used to distinguish the goods or services of one enterprise from those of another enterprise. It can be any distinctive word, letter, numeral, drawing, picture, shape, colour, sound, smell, logotypes, or any combination of these that may be used for distinguishing goods and services, of any given business.

A trademark is used extensively by an enterprise to reach customers by enabling customers to identify and locate the product. A trademark is issued by a national office and is granted for a period of 10 years and may be renewed indefinitely.

What is the term of a registered trademark?

The initial registration of a trademark shall be for a period of ten years but may be renewed from time to time for an unlimited period by payment of the renewal fees.

Renewal of registration

The trademark is initially registered for a period of 10 years, which is calculated from the date of filing of the application and in case of convention application, from the date of priority. The registration is required to be renewed within 12 months before the date of expiry of the registration, ie, 10 years from the date of the application or subsequent renewals.

The failure in renewing the trademark within the stipulated period of time and a grace period of maximum one year granted for restoration of the trademark, automatically leads to removal of the trademark from the Register of Trademarks.

How is the Trademarks Act, 1999 different from the trade and merchandise marks act, 1958?

Major changes that have taken place in the Trade Marks Act, 1999 (in force since 15th Sept. 2003) which has replaced the earlier Trade & Merchandise Marks Act, 1958 (now repealed) includes the following:

1. It has enlarged the definition of trade mark. It now includes shape of goods, packaging and combination of colours which can adopted as a trade mark.
2. The Act provides for registration of trade mark for services in addition to goods
3. It provides for a single Register of Trade Marks with simplified procedures for registration.
4. The Act has simplified the procedure for registration of registered user (licensing of registered trade mark)
5. Provides for registration of collective marks owned by association of persons.
6. Provides for establishment of an Intellectual Property Appellate Board for speedy disposal of appeal from Registrar orders and decision
7. Transferred the final authority for registration of certification of trade marks to the Registrar.
8. Provides for enhanced punishment for the offences relating to trade marks on par with the Copyright Act, 1957 to prevent the sale of spurious goods.
9. Prohibits use of some one else’s trade marks as part of corporate names or name of business concern.
10. Provides for filing of a single application for goods or services falling in more than one class (multi class filing)
11. Increased the period of registration and renewal from 7 yrs to10 yrs
12. Has made some trade mark offences cognizable
13. The Act has amplified the powers of the court to grant ex parte injunction in certain cases
14. There are other related amendments to simplify and streamline the administration of the trade marks law and procedures in the country.

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