A trade mark includes any word, name, symbol, configuration, device, shape of goods, packaging, combination of colours or any combination thereof which one adopts and uses to identify and distinguish his goods from those of others.
According to section 2(1)(zb), a “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; and –
- 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
- 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.
There are three essentials of trade marks:
- it should be a mark;
- it should be capable of being represented graphically; and
- (ji) it should be capable of distinguishing the goods or services of one person from those of others.
Mark
Section 2(1)(m) defines mark to include a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof.’ The definition of mark is an inclusive definition. It may also include other things which may fall within the general and plain meaning of the definition.
Meaning of different kinds of marks
Device: Device is a pictorial representation.
Brand: Brand may refer to those symbols which are branded on the goods such as Monkey Brand fabric.
Heading: The dictionary meaning of heading includes an inscription. However, the meaning of the word heading in reference to trade mark is not very clear.
Label: A label may refer to a composite mark containing various features including devices and words usually printed on paper which can be pasted or attached to the goods themselves or their containers.
Ticket: Ticket may be something stitched or tagged on the goods and containing the mark printed or pasted thereon.
Name: Name may be of an individual (including surname), firm or company. Name also includes any abbreviation of a name. Name may also include domain name.
Signature: Signature means signature of an individual e.g. signature of proprietor of business.
Word, letter and numeral: The terms word, letter and numeral are to given their plain and general meaning. A mark may consist of a combination of them. A combination of letters and numerals are considered differently as a composite mark and a unique combination may qualify for registration.
Shape of goods: ‘Shape of goods’ was not a mark in the definition of mark under the Trade and Merchandise Marks Act, 1958. The Trade Marks Act, 1999 makes shape of goods registrable as mark under the Act.
Packaging: Package includes ‘any case, box, container, covering, folder, receptacle, vessel, casket, bottle, wrapper, label, band, ticket, reel, frame, capsule, cap, lid, stopper and cork’. The definition is inclusive and not exhaustive.
Combination of colours: Combination of colours has been inserted within the definition of mark under the Trade Marks Act, 1999. A scheme of colouring applied to goods is, therefore a mark within the definition.
Any combination of different marks: Any combination of two or more marks is also a mark within the definition of mark.
Essential Features of A Trade Mark
A trade mark is visual symbol used in relation to any goods or services to indicate some kind of trade connection between the goods or services and the person using the mark. In order to bring it within the scope of the statutory definition, a trade mark should satisfy the following essential requirements;
- It must be a mark that is a device, brand, heading, label, ticket, name or an abbreviation of a name, signature, word, letter or numeral shape of goods, packing or combination of colours or any combination thereof.
- It must be capable of being represented graphically.
- It must be capable of distinguishing the goods or services of one person from those of others.
- It must be used or proposed to be used in relation to goods or services.
- The use must be of a printed or other visual representation of the mark.
- In relation to services, it must be the use of the mark or availability or performance of services.
- The use must be for the purpose of indicating the connection in the course of trade between the goods or services, and some person having the right to use the mark either as proprietor or by way of permitted user as the case may be. It is not necessary that the person using the mark should reveal his identity.
____________________________________________________
