A trademark is generally a visually perceptible sign used in relation to goods services. The primary purpose of a trademark is to identify commercial or trade origins of the goods or service such a trademark distinguishes a particular product form another product. It offers an assurance to the consumer that when he is buying a particular item with a trademark, he is purchasing the same item which he has been assured of its quality, composition etc. So, a trademark reflects the goodwill or reputation of a particular product. It is statutorily not compulsory for somebody to register a trademark. If a trade mark is register by someone in that case, he has a built-in right to the safety of that particular mark. The registration of a trademark does not confer any new right on the holder of the trade mark. It only supplements a right which already exists. Therefore, a trade mark registration is a cumulative and not alternative to the protection of the mark by the common law.
Though the act was passes in 1999, all the provisions of the Act came into force from 15th September, 2003, and it extends to the whole of India.
The preamble of the 1999 Act provides for the object of the Act as under.
“The trademarks Act, 1999 is an Act to amend and consolidate, the law relating to trademarks, to provide for registration, to provide for registration and better protection of trademarks for goods and services and for the prevention of the use of fraudulent marks.”
In Laxmikant Patel v. Chetanbhai Shah, 2002 the Supreme Court explained the objective of the trademark as follow:-
The law does not permit anyone to carry on his business in such a way as would persuade the customers or clients in believing that the goods or services belong to someone else are his or are associated therewith. The reasons are two,
- Firstly, honestly and fair play is, and ought to be, the basic principles in the world of business.
- Secondly, when a person adopts or intends to adopt a name in connection with his business or services which already belong to someone else, it results in confusion and has probability of diverting the customers and clients of someone else to himself and thereby resulting in injury.
Objectives of Trade Marks :
The Trademarks Act 1999, a relatively more comprehensive legislation, has been enacted to take account of the changing global scenario. It has been enacted with the following objectives: –
- Providing registration of trademarks for services in addition to goods.
- Simplifying procedure for registration by registered user and enlarging the scope of permitted use.
- Prohibiting the use of someone else trademark as a part of the name(s) of business concern(s).
- Based on Constitution’s provisions
Article 19 of the Indian Constitution lists freedom of trade and movement as one of the essential rights. In addition to this, several additional fundamental rights ensure the safety of the trade and profession of its residents as well as non-citizens including jural/legal people. As a result, one of the goals of the Trade Mark Act is to secure the preservation and fulfilment of these fundamental rights.
- Based on statutory provisions and common law rights
The granting of specific civil rights in each civilised society to protect its people, trading partners, and others from any harm, whether criminal or civil, is essential to the civilization’s survival and progress. The fundamental right to freely trade includes the freedom to establish, develop, and grow one’s own business by legal means.
As a tool for promoting one’s own business, a trade mark must be protected from illegal uses to safeguard the legitimate owner from dishonest and criminally motivated individuals. Additionally, safeguarding the standard of goods and services is the only way to advance the greater good of the public. The availability of identical items on the market results in the duplication of well-known and well-liked products and services by unlicensed users, as well as the original proprietor’s incapacity to maintain the quality owing to losses in terms of revenue, reputation, and public confidence. As a result, the Trade Marks Act was created to safeguard people’s basic, constitutional, and civil rights, as well as to serve the public interest.
- Based on Act’s preamble
The Trade Marks Act, 1999’s preamble states that the Act’s purpose is to protect trade marks and prohibit fraudulent use of trade marks. Similarly, one goal of the Indian Penal Code involves the preservation of people’s civill rights, including the right to grow one’s own business through the creation of a brand through the use of certain trademarks and the advancement of public interest. As a result, both Acts allow for the penalty of any unauthorised person who uses a trade mark fraudulently.
- Based on Judicial Interpretation
The Supreme Court provided the following explanation of the purpose of the Trade Mark Act in Dau Dayal v. State of Uttar Pradesh (1959):
The goal of trade mark law is to defend the rights of individuals who produce and sell items bearing distinctive trade marks against infringement by third parties that misrepresent the origin of their products by using trade marks that are not their own.
- In light of India’s duties to other countries
India is required to consolidate its municipal law by such treaties and conventions because it is a signatory to numerous significant international treaties, such as the Trade-Related Aspects of Intellectual Property Rights (TRIPS), and because it is a part of various conventions and agreements under these conventions, such as the Paris Convention and Madrid Agreement. Additionally, it must safeguard the commercial interests of local traders from unwarranted harm brought on by unfair competition from outside. With these goals in mind, India has modernised and strengthened its legal framework for trademarks.
Salient Features of the Trademark Act, 1999
Following are the salient features of the Trademarks Act, 1999:
- Definition of trademark includes “service”
The Trademarks Act, 1999 has changed the definition of trademark given under the TMM Act, 1958. The Trademarks Act, 1999 for the first time includes ‘services’ within the definition of “trademark”. Therefore, under the Trademarks Act, 1999 businessmen and traders may apply not only for the registration of the trademarks for their goods but also for the “services” provided by them.
- Register of trademarks is not divided into parts and may be maintained in computer floppies or diskettes : Under the trademarks Act, 1999 the register of trademarks is not divided in part A and B for the registration of trademarks as it was under the TMM Act, 1958. The Trademarks Act, 1999 provides that the register of trademarks may be maintained on computer. Therefore, any reference to any entry in the register of trademarks shall be construed as reference to an entry maintained on computer or in any other electronic form.
- Absolute and relative grounds for refusal of the registration for the trademark: The Trademarks Act, 1999 for the first time divides the grounds for the refusal of the registration for the trademarks as:
- Absolute grounds; and
- Relative grounds.
- Better protection to the ‘well-known’ trademarks : The Trademarks Act, 1999 for the first time defines “well-known” trademark. The Trademarks Act, 1999 not only defines the well-known trademarks. Under the Trademarks Act, 1999, a trademark is refused registration if it is identical with or similar to a well-known trademark even though registration is sought for the goods or services which are not similar to the goods with which the well-known trademark is associated. Thus a well-known trademark is accorded protection not only with respect to those goods and service which it is associated but also with respect to the goods and or services with which it is not associated.
- Registration of “collected Marks” owned by association : The trademark act 1999 for the first time defines and provides for the registration of the collective marks as trademarks. The 1999 Act define the collective marks as another separate category of the trademarks owned by the members of the association of the persons. As the collective marks is owned by an association as its proprietor.
- Single application for registration of more than one class of trademarks : The trademarks Act 1999 provides for a single application for registration of trademarks for different classes of goods and services.
- Registrar to be final authority relating to registration and certification of trademarks : The trademarks Act 1999 provide that it is the registrar of the trademarks who is the final authority with respect to the registration and certification of trademarks instead of the central government.
- Establishment of Appellate Board: The Trademarks Act 1999 does not provide jurisdiction of high court as provided under section 3 of Trade Marks Act 1968. In the place of high court, the trademark act 1999 provides for appellate board for speedy disposal of appeals which lie before the high court. The trademark act 1999 provide for the establishment of appellate board for the speedy disposal of appeals and rectification of which present lie before the high court. The 1999 Act provides for a separate chapter XI for the establishment of the appellate board. IN chapter XI of the 1999 Act are laid down comprehensive provisions for the composition’s powers of the appellate board as well as the procedure before the appellate board.
- Penalties for offences: The trademark Act 1999 provides for the penalties in the form of imprisonment and fines for the offence of falsifying trademark, false application of trademarks.
- International Arrangements: The Trademark Act 1999 provides for the international arrangements made by India with other countries to afford to citizens of the country similar privileges as are granted to their own citizens in those countries with respect to the trademarks. The act has, inter alia, enlarged the scope of trademarks, prohibited the filling of a single application for registration in more than one class, increased the period of the validity after registration/renewal from 7 to 10 years, and made trademarks offences cognizable.
Intellectual property is important for a person or company to safeguard. Without proper safeguards in place, one company’s ideas can be replicated by another company and used for their profit. Some legal issues can arise from IP, but as long a company is on top of the paperwork and has an attorney, they can prevent most of the issues or fight them if necessary. Having precautions in place can also help a company keep their trade secrets safe. With the use of a non-disclosure agreement with a non-compete clause can help a company keep their secret intact for their company to use when it is needed. While contracts are put into place to ensure a business will do what is required, a contract breach is possible. The violation can be resolved with employee input as well as mediation to ensure proper resolution for the breach. Using some of the techniques will prevent a company’s IP from getting into the wrong hands.