In today’s post we will discuss the meaning of Trade Mark and some essential ingredients of the Trade Mark law. The object of the trade mark legislation is to provide for registration and better protection of trade marks for goods and services and for the prevention of the use of fraudulent marks. When a trade mark is registered, certain statutory rights are conferred on the registered proprietor. These rights enable the proprietor to take necessary legal action against persons infringing the registered trade mark.
Overview
Meaning of a trade mark: A trade mark is essentially a visual symbol which may be a word, a device, or a label applied to articles of commerce with a view to distinguish it from other similar goods or services. Thus, when a person sells his goods under a particular trade mark, he acquires an exclusive right to the use of the mark in relation to the goods. According to Section 2(1)(zb) of the Trade Marks Act, 1999 (“Act“), a meaning of a trade mark is, “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 […]“. Further, according to Section 2(1)(m) of the Act, a “mark” includes, “a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof.”
Essential Requirements
A trade mark should satisfy the following essential requirements in order to fall within the ambit of the statutory definition1:
- 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, packaging 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;
- such use in relation to goods must be upon, or in any physical or in any other relation whatsoever to the goods; and
- the use must be for the purpose of indicating or so as to indicate a 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.
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.”
How to Select a Trade Mark
The following points must be taken into consideration while selecting a trade mark:
- If it is a word, it should be easy to speak, spell and remember, e.g: Oyo, Uber, etc;
- The best trade marks are invented or coined words, e.g: Google, Zomato, etc;
- Avoid using a geographical name;
- Avoid using laudatory words or words that describe the quality of goods, e.g: best, perfect, etc;
- Before finalizing a trade mark, it is always advisable to conduct a search to ascertain if same/ similar mark is used in the market.
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Benefit of Registering a Trade Mark
In principle, a trade mark registration will confer an exclusive right to the use of the registered trade mark. This implies that the trade mark can be exclusively used by its owner, or licensed to another party for use in return for payment. The Registered Proprietor of a trade mark can thus create, establish and protect the goodwill of his products or services. He can stop other traders from unlawfully using his trademark, sue for damages and secure destruction of infringing goods and or labels.
References
1. P. Narayanan, Law of Trade Marks and Passing off, Sixth Edition, Eastern Law House, 2017, p. 13.