A trade mark is a mark given to a product or service by the manufacturer or an entrepreneur to make the product or the service stand out when compared to other products, which are sold in the market or services which are rendered.
Trademark is useful not only for a person from the legal discipline but it is also useful for business entities, traders and for whomsoever who wants to own a trademark and want to run any kind of a business or wants to provide any kind of service, then he/she would need a trademark.
The Conceptual Basis of Trademark
Trademark is a mark or indication which is used in the course of a trade by the concerned person or by the person owning the trademark to distinguish his goods or services from the goods and services of another person.
- Trademark is a mark in the form of a device, letter, logo, numeral, signature, words, or combination of words or a combination of the aforementioned things.
- There are so many things that can be called a mark and whatever mark is used to indicate or signify the goods or services in the course of trade, that is known as a trademark but it needs to have the capacity to distinguish the goods or the services of one person from the goods and services of another person, then only trademark registration would be given.
- When a person owns a trademark and uses it in the course of the trade; the reputation of his business, quality of his products, and his origin can be recognized by the consumer
- From the perspective of a consumer, when a person affixes the trademark on his goods or services, the consumer does not want to get cheated or deceived by the existence of deceptively similar trademarks or by the existence of confusingly similar trademarks.
- It is important to recognize the source of the goods or services. It is necessary to learn from where the goods or services are being originated. And his goods or services are getting identified by the consumers only because of that particular trademark which the owner affixes with his goods and provides with his services and that becomes a brand in the market.
- Sometimes trademark is used as a tradename on an organization and the goods, it is used as a trademark.
The Legal Factors for Trademark Research And Analysis
The Trademark Act of 1999 provides legal rights of a trademark that has been registered, to be promoted in the market by the proprietors of the product. But sometimes many products do not have a trademark registered, even if there was no intention of creating a deceptively similar mark. Therefore, if they are sued, they can seek relief under common law remedy and refer to the previous verdicts of the courts on cases that were alike to the current one, and fight with enough reasoning, and come in terms through negotiation and form a new agreement or contract related to the similar trademark with the other party. The jurisdiction of the law of court for trademark enforces legal actions by referring to the Code of Civil Procedure, 1908 (CPC), and the Trademark act of 1999, against infringement of any kind on the trademark of an article.
District courts are the only courts that have the power to exercise jurisdiction and rulings for or against trademark suits that are filed. Infringement and passing off also play an important role in the judicial administration of cases related to trademark: –
- Section 29 (1) of the Trademarks Act, 1999 defines, infringement of a registered trademark. When Infringement of a registered trademark is done by a person who is not the original manufacturer or the creativity head of the existing trademark, and if the usage of that trademark on goods and services is done in a manner, which proves that the trademark is identical or deceptively similar to an originally registered trademark, it leads to a wrongful offense.
- The laws of the legislature are studied and relied upon in these types of cases of infringement of the trademark (statutory remedy is followed).
- Section 134 of the Trademark act of 1999, safeguards the proprietors of the registered trademark if they can prove that the infringing mark is misleading and deceptively similar to the registered mark on his product and no further verifications are required once the plaintiff can prove or establish the breach of conduct.
- Section 27 (1) of the Trademarks Act, 1999 defines, no action for infringement of the unregistered trademark.
- Registration of trademarks is not required in the case of passing off. But it is important to prove the deceptive similarity between the two trademarks and various verifications are also required by the plaintiff in the court, to strengthen his case regarding the trademark being used on other goods or services without permission.
- Cases that are similar to the one filed in the court relating to passing off, of the trademark, are studied and justice can be given based on hearings and petitions granted by courts on previous cases which are similar to this one (common law remedy).
- Legal rules under Section 20 of the civil procedure code (CPC), 1908 can be availed, on passing off cases only based on, where the defendant resides or carries on his exertion.
- The trademark laws have come into existence, to address the issues faced by the consumer and the owner of a trademark and to provide a full-fledged mechanism to get the protection on that particular trademark.
- If there is any violation of the trademark, the function of the trademark law is to enforce the trademark which has been intruded upon or infringed by any wrongful person.
- Any legitimate case relating to a trademark cannot go beyond its jurisdiction. Disputes related to trademark require to be adjudicated, as the trademark is the identity of the commodity which is being sold, it defines the quality of that commodity.
- Registration of a trademark is necessary to avoid infringement or unaccustomed acts conducted by people who intend to steal or create a mark, similar to the trademark of a genuine seller of a product. Therefore, it is very crucial to not tolerate acts that fail to observe the law and order of the country.
- The intellectual creations of a mindset should be applauded and are given credits when the consumer consumes that form of creativity and continues to be loyal and faithful towards buying it, and certain legal rights are required in the form of designs, trademarks, copyright, etc., to protect it.
- Trade marks define the value and eminence of the product which is being sold to the purchaser, who buys it. And if he/she, is satisfied by the product then they introduce the product to others through its trademark.
- Without the sole proprietor’s consent, no one should be entertained to use the registered trademark on their goods and services.
- There are several legal rights, agreements, and treaties available to protect trademarks.
- It is very crucial to be aware of the rights, as the trademark is not considered a liability anymore, on which manufacturers have to depend upon to carry their business. Consumers should always be given differential products and he/she should always be provided with different choices in the market so that they can make a decision as per their preference and expectation and it cannot happen without trademarks being affixed. Therefore, the function of a trademark is to indicate the source and origin of the goods or services.
- Another function of the trademark is to let the consumer be in a position where he/she can make choices or and easily recognize any particular good or service as per his/her preferences.
- Trademark has to be omnipresent in the market. It has to be a popular and reputed one in the market.