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BUSINESS LEGISLATION SEMINAR
TOPIC
TRADE MARKS AND TRADE NAMES
PRESENTED BY,
MINUTHA &
SARASWATHIIII SEM OF MBA
MAHARANIS COLLEGE
SUBMITTED TO,
DR.K.P.VEENA MAM
DEPARTMENT OF MBA
MAHARANIS COLLEGE
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TRADEMARKS AND TRADE NAMES
It deals with good will attached to marketing
symbols, trademarks, trade names or get up by
actual use in relation to some product or service
Examples Reebok, Mc Donalds, Nike, Levis etc.
The Trade Marks law is contained in Trade Marks
Act, 1999
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TRADEMARKS
Trademark is a symbol that indicates who is
responsible for the goods placed in the market
Trademarks help to distinguish between thegoods of competing traders
Trademark helps a customer to buy goods of a
certain quality (e.g. color, size, weight,
fragrance, taste.)
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TRADEMARKS
Trademarks must be clear and distinct from
each other
Trademarks may be in form of a letter,numeral, whole sentence, picture,
combination of words and devices, label etc.
Trademark may also be three-dimensional
(e.g. neck of bottle)
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TRADE NAMES
Trade names are names, terms or designationsthat serve to identify and distinguish anenterprise and its business activities fromth
ose of other enterprise and its business
activities
Whereas the trademark distinguishes thegoods or services of an enterprise, a trade
name identifies the entire enterprise andsymb
olizes the reputation and goodwill of the
business as a whole.
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TRADE NAMES
The main reason for protecting trademark andtrade names against infringement is that thepublic might be misled into thinking that two
separate enterprises using same orconfusingly similar trademark or a trade nameconstitute one and the same enterprise
It is not only harmful to the consumers but italso permits the infringing enterprise tobenefit unfairly.
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SERVICE MARKS
Where a trademark is used in connection with
services, it may be called service mark.
Service marks are used by hotels, restaurants,
airlines, tourist agencies, laundries and
cleaners etc.
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TRADE MARKS ACT, 1999
INTRODUCTION
Patents, designs and copyright are protected only
for a limited period. On the other hand, in general,a registered trade mark can be protected inperpetuity subject only to the following conditions:
It is used and renewed periodically and
The registered proprietor takes prompt actionagainst infringers.
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TRADE MARKS ACT, 1999
First TM registered in UK under No. 1 of 1876consisting of red equilateral triangle inrespect of alcoholic beverage is still in force.
The present Trade Marks Act, 1999 hasreplaced the Trade and Merchandise MarksAct, 1958. And the Trade Marks Act, 1999 has
been brought into force only on 15thSeptember 2003. The Trade Mark Rules, 2002are passed under the Trade Marks Act, 1999.
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OBJECTIVES OF THE TM ACT, 1999
A comprehensive review of TM Law wasrequired in view of
Developments in trading and commercial
practicesIncreasing globalization of trade and industry
The need to encourage investment flows andtransfer of technology
Need for simplification & harmonization oftrade mark management systems and
To give effect to important judicial decisions
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TM Act, 1999 was passed with
objectives
a) To provide for registration of trade mark forservices, in addition to goods;
b) Registration of trade marks, which areimitation of well known trade marks, not tobe permitted, besides enlarging the groundsfor refusal of registration;
c) Amplification of factors to be considered fordefining a well known mark;
d) To provide only a single register withsimplified procedure for registration andwith equal rights;
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TM Act, 1999 was passed with
objectives
e) Providing for registration of collective marks
owned by associations;
f) Providing an Appellate Board for speedy disposal
of appeals ad rectification applications;
g) Providing enhanced punishment for the
offences relating to trade marks;
h) Prohibiting someone elses trademark as part ofcorporate names, or name of business concern;
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TM Act, 1999 was passed with
objectives
i) Provision for filing a single application for
registration in more than one class;
j) Increasing the period of registration andrenewal from 7 to 10 years;
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HOW TO SELECT A TRADEMARK
If it is a word it should be easy to speak, spell andremember.
The best trade marks are invented words or coined
words. Please avoid selection of a geographical name. No one
can have monopoly right on it.
Avoid adopting laudatory word or words that describe
the quality of goods (such as best, perfect, super etc) It is advisable to conduct a market survey and a search
at Trademark office to ascertain if same/similar mark isused in market.
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MEANING AND DEFINITION OF TM
At times the consumers are duped when theybuy commodities presuming them to haveoriginated from a certain identified source,
when actually they have not, and after buyingsuch commodity it is found to be substandard.
Examples: Parachute Oil, Fair and Lovelycream, Lifebuoy soap etc. have many look-a-likes in the market.
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MEANING AND DEFINITION OF TM
In such case, the reputation of thetrader/manufacturer suffers if spurious goodsare sold as those originating from him.
Therefore, the interest of consumer and thetrader can be saved if a definite symbol whichmarks out the origin of goods from a definitetrade source is attached. Such symbol is called
a trade mark. E.g. M of Mc Donald written in Yellow in a
peculiar shape is a TM. Such symbol is calledas TM.
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MEANING AND DEFINITION OF TM
Trade Mark is a visual symbol in the form of-
A word, device or label
Applied to articles of commerce
With a view to indicate to the purchasing publicthat
They are goods manufactured or
Otherwise dealt in by a particular person orparticular organization
As distinguished from similar goods manufacturedor dealt by others
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MEANING AND DEFINITION OF TM
TM is a visual representation attached to
goods for the purpose of indicating their trade
origin.
Examples: Lakme distinguishes the goods of
Lakme Company from that of Revlon.
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MEANING AND DEFINITION OF TM
A person who sells his goods under a particulartrade mark acquires limited exclusive right to useof the mark in relation to those goods.
A trade mark may be registered or unregistered.An unregistered trade mark is called common lawmark.
A trade mark when registered gets a stable
existence. A registered trade mark can be inrelation not only to its existing use but also for aproposed use.
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MEANING AND DEFINITION OF TM
The proprietor of an unregistered trade markshall not be entitled to institute any proceedingto prevent, or to recover damages for, the
infringement of an unregistered trademark.
However, such proprietor of unregistered trademark shall have common law remedy to take
action against another person, for passing offgoods as goods of the proprietor, or passing offservices as services provided by proprietor.
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STATUTORY DEFINITIONS
MARK: Section 2(1) (m) of TM Act, 1999 definesMark as Mark includes a Device, brand,heading, label, ticket, name, signature, word,
letter, numeral, shape of goods, packing orcombination of colours or any combinationthereof.
Example M written in a particular style with
yellow colour for MacDonalds; 555/777numerical used for detergent soaps; signatureused as a mark for alcohol etc.
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STATUTORY DEFINITIONS
TRADE MARK: Section 2 (1) (zb)
Trade mark is defined as a mark capable of being represented graphically and that is
capable of distinguishing the goods or servicesof one person from those of others and mayinclude shape of goods, their packing andother combination of colours.
E.g. Colgate, Bata, Pantene etc.
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STATUTORY DEFINITIONS
SERVICE MARK: Section 2 (1) (z)It means service of any description that is madeavailable to any potential users and includes theprovision of service in connection with business
of any industrial or commercial matters such asbanking, communications, education, financing,insurance, chit funds, real estate, transport,storage, material treatment, processing, supply ofelectrical or other energy, boarding, loading
entertainment amusement, construction, repair,conveying of news or information andadvertising.
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STATUTORY DEFINITIONS
WELL KNOWN TRADE MARK: Section 2(1) (zg)Well known trade mark in relation to any goodsor services, means a mark which has become soto the substantial segment of the public which
uses such goods or receives such services that theuse of such mark in relation to other goods orservices would be likely to be taken as indicatinga connection in the course of trade or renderingof services between those goods or services and
a person using the mark in relation to the first-mentioned goods or services.Example: Coco Cola, Frooti, Bata.
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STATUTORY DEFINITIONS
COLLECTIVE MARK: Section 2(1) (g)A Trade mark distinguishing the goods orservices of members of an association of persons not being partnership firm from thoseof othersThe proprietor of the mark is the association.The goods and services of a company or groupof companies like GODREJ or HINDUSTAN
UNILEVER LTD. may be the subject matter ofcollective Trade mark. It is not to be registeredif it is likely to deceive or cause confusion tothe public.
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STATUTORY DEFINITIONS
CERTIFICATION TRADE MARK: Section 2 (1) (e)
There is a species of trade mark called asCertification Trade mark. Its function is to
indicate that the proprietor of the mark hascertified the goods bearing the mark as tocertain characteristics of the goods.
e.g. Geographical origin, ingredients and so on
such as ISI, AGMARK.
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STATUTORY DEFINITIONS
PROPERTY MARKSPROPERTY MARKS
Section 479 of Indian Penal Code, 1860 providesSection 479 of Indian Penal Code, 1860 providesthat A mark used for denoting that moveable propertythat A mark used for denoting that moveable propertybelongs to a particular person is called a propertybelongs to a particular person is called a property
mark.mark.
The distinction between trade mark and propertyThe distinction between trade mark and propertymark is not recognized in English Law.mark is not recognized in English Law.
However in India, the distinction between a tradeHowever in India, the distinction between a trademark and a property mark is as follows:mark and a property mark is as follows:
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STATUTORY DEFINITIONS
Trade Mark Property Mark
It denotes
manufactureor quality of the
goods to
which it is attached
It denotes the
ownership of them
It concerns thegoods
themselves
It concerns theproprietor of the
goods
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Trademark Registration
We take great pride in introducing ourselves as a leading
law firm in India, which has developed a highspecialization in the field oftrademark registration inIndia. We cover all the requirements and expectations ofour global clients from our highly expertise trademark,patent and company lawyers and attorneys beginning
from Trademark Search, Trademark Filing, Trademarkoppositions, and Appeals, trademark registration,international trademark registration services andtrademark enforcement services, which give completecustomer satisfaction completely. We have a team ofhighly qualified and experienced professionals, who are
expert in solving all types of issues related to trademarkregistration. Our policy is to enhance the customersatisfaction through providing high quality trademarkregistration services and query resolution system.
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Trademark Search
A trademark search is an analytical andcomprehensive way of researching a name, logoor slogan for prior use. It is highly advisable toconduct a trademark search before filing anapplication for a trademark. A basic trademarksearch includes applications for trademarks inIndia and registered trademarks. This search isonly for required and relevant information, butevery possible effort has been made to ensure
accurate results. The main purpose of atrademark search is to determine if someone hasalready trademarked your intended mark.
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India Trademark Registration
We offer trademark registration services at affordable priceto our global clients in India & across the globe, which suitsthe client's requirements and expectations completely. Wecover all the requirements and expectations of our globalclients beginning from Trademark Search, Trademark Filing,Trademark oppositions, and Appeals, trademarkregistration, international trademark registration servicesand Trademark Enforcement services. We have a team ofhighly qualified and experienced trademark attorneys, whoare expert in solving the client's queries and trademark
issues.
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Our India Trademark Registration
Service includes:-
Preparation and filing of your Trademark application
Maintaining your File and consultation with India TrademarkAttorney, who is our Trademark Consultant during the time yourmark is processed by the Registry.
Notifying acceptance of the objections or application by the office.
Counseling the publication of application in Trade Marks Journaland forwarding a copy of the relevant page publication to you.
Advising time limits for responding to office actions.
In the case of objections by the office, helping you to prepare theresponse. to the office objections through the services of our India
Trademark Attorney. Payment of Attorney Fees.
Payment of Office Fees for filing your application.
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Indian Trademark Registration Office
The trademark registration office in India is anagency, which provides protection to theinventors and business for their inventions andtrademark registration for the product andintellectual property identification. The
trademarks are registered on either the principalregister depending upon the characteristiccriteria. Mainly, trademark office is used topromote industrial and technological progressesand also strengthen the national economy byadministrating the laws relating to patents andtrademarks.
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FUNCTIONS OF TRADE MARK
TM may be used to indicate that the goods areof a particular maker
The goods of that maker are of a particularkind or quality.
Trader may indicate his best quality by oneTM, and his second best quality by anotherTM and so on. E.g. MRF with the symbol ofperson holding tyre is good quality and MRF
written plainly indicates the second quality. It serves the purpose of identifying the source
of origin of goods.
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FUNCTIONS OF TRADE MARK
As per modern business conditions a TM performsfollowing functions:It identifies the product and origin.It guarantees its unchanged quality.
It advertises the product.It creates an image for the product.e.g. Zip Drive associated with Santro Car; Taj
Mahal for a particular quality of tea which will bedifferent in quality from Brooke Bond; SONY is
associated with electronic items etc. The functions of service marks in relation to services
are similar to that of a TM in relation to goods. E.g.Courier services such as DHL, DTDC, GATI etc.
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ESSENTIAL FEATURES OF TM
A Trade mark should have the following essentialelements:
1. A Trademark should have Distinctive Character(Distinctiveness of the Trademark)
A trade mark would be considered a good trademark when it is distinctive.
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ESSENTIAL FEATURES OF TM
Features of Distinctiveness
Distinctiveness may be class dependent.
What is distinctive in relation to one class of goods
may not be so in relation to another class of
goods.
The TM may be united wholly to one or more
specified colours and this colour combination maybecome the distinctive character of the particular
mark.
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ESSENTIAL FEATURES OF TM
Distinctiveness may be inherent or acquired.
Inherent distinctiveness means that the mark or get up is
distinct in itself from everything else and no one can
justifiably claim the right to use it. E.g. RIN, ZEN.
Acquired distinctiveness means
Distinctiveness through use. E.g. the trade marks Yashica,
Hawkins, Surf and Lux have acquired distinctiveness
through use as also they are distinctive due to the inherent
quality of why being invented words.
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ESSENTIAL FEATURES OF TM
2. Trademark should preferably be an invented word. Thebest trade marks are invented words. E.g. ZEN ( a car) ,DIO (non-geared scooter).
3. Trademark, if it is a word, or name, then it should be
easy to pronounce and remember. E.g. Lux for soap,Maruti Zen for car, Mercedes for cars, Levis for jeans,Reynolds for pens, Parker for pens etc.
4. In case of a device mark, the device should be capable ofbeing described by a single work. E.g. Camel for Camel
Ink, Kingfisher bird for Kingfisher Beer.
5. Trade mark should be easy to spell correctly and writelegibly.
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ESSENTIAL FEATURES OF TM
6. It should not be descriptive but may be suggestive of thequality of goods. For example, a mark A-I wouldgenerally suggest superior quality. Avon (A-1) cycles forinstance.
7. It should be short. E.g. Flex, Bru, Rin.8. It should appeal to the eye as well as ear.
9. It should satisfy the requirements of registration.
10. It should not belong to the class of marks prohibited for
registration. E.g. Mark prohibited under the Emblemsand Names (Prevention of Improper Use) Act, 1950
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THANK YOU