A Trademark , in layman’s understanding would mean a business mark and particularly a logo. But Trademark is something way more than this . The Trademark Act, 1999 defines Trademark as – “trade mark” 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. Office of the Controller General of Patents , Designs and Trademarks defines Trademark as – A trademark (popularly known as brand name) in layman’s language is a visual symbol which may be a word signature, name, device, label, numerals or combination of colours used by one undertaking on goods or services or other articles of commerce to distinguish it from other similar goods or services originating from a different undertaking.
Trademark facilitates the growth of any business as it protects the business’s authenticity, reputation and uniqueness through registration of the brand name or the trade name in the form of registration of Trademark . Thus , a trademark protection can be obtained by Registration of Trade Mark Trademark registration will confer an exclusive right to the proprietor to use the trademark and also gives him the right to sue in case of Infringement by any unauthorised person. Moreover, the registered proprietor may assign or license his trademark . A Trademark can be registered by filling an application with the national / regional trademark office along with the required fees .
A word or a combination of words, letters, and numerals can perfectly constitute a trademark. But trademarks may also consist of drawings, symbols, three-dimensional features such as the shape and packaging of goods, non-visible signs such as sounds or fragrances, or colour shades used as distinguishing features – the possibilities are almost limitless. But , there are somethings which cannot be registered at all and the Trademark offices will prima facie refuse the Registration .
These are marks which :-
- Confusion or deceives the public; or
- Hurts religious susceptibilities of class/ section of citizens of India; or
- Comprises/contains scandalous/obscene matter which is against the morality of the public; or
- Is prohibited under the Emblems and Names Act, 1950
Along with these , the Trademarks Act , 1999 exclusively state the grounds of refusal.
- Absolute grounds for refusal of registration.—
(1) The trade marks—
(a) which are devoid of any distinctive character, that is to say, not capable of distinguishing the goods or services of one person from those of another person
(b) which consist exclusively of marks or indications which may serve in trade to designate the kind, quality, quantity, intended purpose, values, geographical origin or the time of production of the goods or rendering of the service or other characteristics of the goods or service
(c) which consist exclusively of marks or indications which have become customary in the current language or in the bona fide and established practices of the trade, shall not be registered: Provided that a trade mark shall not be refused registration if before the date of application for registration it has acquired a distinctive character as a result of the use made of it or is a well-known trade mark.
- Relative grounds for refusal of registration.—(1) a trade mark shall not be registered if, because of—
(a) its identity with an earlier trade mark and similarity of goods or services covered by the trade mark; or
(b) its similarity to an earlier trade mark and the identity or similarity of the goods or services covered by the trade mark, there exists a likelihood of confusion on the part of the public, which includes the likelihood of association with the earlier trade mark.
Therefore , we see that at one hand, Trademark promotes the business but only and only if the mark intended to be registered as Trademark , has the distinguishing feature and is not against public morality.
Author: Aayushi Aman, Legal Intern at PA Legal.
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