Trademark is the name, symbol, logo, sound, etc. which identifies the basis and the origin of the goods and the services basically it shows the value and goodwill of the good. Trademark is the distinguishing factor which actually differentiates one firm from another by the means of their name, symbol, etc. without a trademark, it would be very difficult for the consumer to identify products. In the economic term, trademark gives the power of “monopoly” that can be used only by himself. No one can use either the same trademark or branding attached to his products for raising margins if someone tries to use the trademark of others that would be called as trademark infringement i.e violation of exclusive rights attaching to a trademark without the authorization of the trademark owner or any license. Trademark gives a boon to the company in the sense that it works as an incentive, by the means of it helps a company to expand its business to other commodities. umbrella branding (brand extension) which means that a company uses its trademark which is famous by selling one product enters into another type of market. Example of such market is RELIANCE which works in retail marketing, entertainment industry, telecommunication, restaurants, etc. by the means of such brand extension, it gives a legitimate competition with other companies present in the market. Indian trademark law provides protection to trademark statutorily under trademark act 1999 and also under the common law remedy of passing off. PASSING OFF is a common law tort which can be used to enforce unregistered rights. The tort of passing off protects the goodwill of a trader from a misrepresentation. Statutory protection of a trademark is administered by the controller general of patents, designs, and trademark, a government agency which reports to the department of industrial policy and promotion (DIPP), under the ministry of commerce and industry. DefinitionAccording to section 2 (zb) of the trademark act 1999 “ trademark 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.” a mark can include a device, brand heading, label, ticket name, signature, word, letter, numeral, shape of goods, packaging or combination of colors or any such combination. In India, the term of registration of a trademark is 10 years from the date of Registration, which can be renewed for a further 10 years before the expiration date by paying the prescribed fees. There are various types of benefits if someone registered their brand name as a trademark, firstly it gives the uniqueness to the product, the faith of the public is also raised as compared to the other competitors present in the market, protects the name of the product from its duplicity, trademark gives a long term security to the business. Various Types Of Trademarks Can Be Identified as Follows:
- Trademark as Property: Trademarks are generally not considered as a property as normal people understand the property to be of two types i.e. movable and immovable but as we know that there is another type of property which is IP and it is a special kind of property which can intangible or tangible as per the preference of the owner.
- Trademark and Patent: Although the trademark and patent look very similar but there are some key differences which disguise both. Trademarks are a protection to a mark with which the company differentiates the product from other products in the market whereas the patent is a protection to the idea which has turned into reality.
- Trademark and Copyright: Both the trademark, as well as copyright, provide a right to ownership whereas in copyright gives protection to the author’s publication, in other words, copyright helps to protect original content.
- Trademark and Geographical Indications: Trademark is actually a mark which shows that the authenticity of the product is on the top notch and the product is made only by the concerning authority who actually has the right but on the other hand if we talk about Geographical Indication it the right which is govern to the manufacturer of some type of goods which can only be made at a particular region or state if somebody else indulge in such type of activity outside that region he is committing an offense.
- Trademark and Brands: Trademark is a mark which legally represents something and a brand name is a name which a business uses for its product. A brand specifies and identifies a particular type of product.
- The Shape of Goods as a Trademark: Any shape of goods or its packaging or any three-dimensional object which can be represented graphically can be used as a trademark.
- Smell Trademark: Smell as a trademark can be registered as long as it can represent graphically and can be distinctive as a good. The link which connects smell trademark to the customer is olfactory. The smell is a very powerful & distinctive feature which any consumer can actually judge and differentiate a good from one merchant to others. Ex: Chanel was the first company which registered its fragrance. In India, it is not been registered under intellectual property rights.
- Touch Trademark: Under the observation of German supreme court touch trademarks are the non-conventional trademark. Signs which are suitable to distinguish .the goods or services of a specific enterprise from others is eligible for trademark protection the principal function of the mark is to ensure that the customer identifies the original product with the label or mark. A sign which is perceptible via the sense of touch can also be a trademark. In India, touch trademark is also recognised and can be registered as a trademark. Example of such trademarks are raw silk, raw cotton, raw or treated wool.
- Slogan trademark: Slogans can also be registered as a trademark, slogans show the motto as well as the brand name of the product. The public reacts to slogans more quickly than normal branding does. For the registration of a slogan, it should be creative and distinctive. Mere, not every slogan can be registered as a trademark, there should not be a slogan with different meaning like as help me! For NGOs and other volunteer groups.
Trademark Classification in India
Trademark in India is classified in about 45 different classes, which includes chemical substances used in industry,paints, lubricants machine , machine tools, medical and surgical , instruments, stationery , lather, household,furniture, textiles, games, beverages preparatory material, sanitary material, and hand tools, other scientific and educational products. Goods were classified in 1-34 classes, and services were classified in 35-45. These are again further subdivided, the main objective of trademark classification is to group together the similar nature of goods and services.
Registration of a Trademark in India
STEP 1: Selecting a different and unique brand name STEP 2: Making the trademark application STEP 3: filling the brand name application STEP 4: examining the brand name registration application STEP 5: Issuance of the trademark registration certificate. Registration of a trademark confers the owner has the exclusive right by showing a symbol of ® or (™) in the goods and services.
Remedies Available To The Owner of a Trademark in Case of Infringement
There are two types of remedies available in case of infringement by the third party.
- Action for infringement in case of a registered trademark
- Action for passing off in case of an unregistered trademark
In both, the usage of the case of someone trademark is an illegal act for which the owner can file a suit against a third party who does such a thing. The first remedy which is an action for infringement is a statutory remedy which is basically codified in nature and the second remedy is a common law action. In both the cases court grant relief of injunction, monetary compensation for the damages incurred to the business of the owner and government confiscate/destroy the infringing labels and tags, etc. In India, the punishment for selling and providing services by using fake tags or trademark is a minimum of six-month imprisonment which may extend to three years, with a minimum fine of rupees fifty thousand which may extend to rupees two lakhs.
Feast over Choco Feast; Unilever’s Sweet Win
Unilever PLC, a well-known FMCG, filed a suit seeking a permanent injunction against Hyderabad based Masqati Dairy Products for infringing Unilever’s registered trademark FEAST by using the deceptively similar mark CHOCO FEAST for ice-creams. The High Court of Bombay instructed Masqati to pay INR 5 lakh as damages to Unilever. However, Unilever requested the amount be donated to ‘AWARE Foundation’, an organization which takes care of animals found in a sick and injured condition on the streets. The Court passed a permanent injunction in favor of Unilever. Interestingly, the Court also ordered the infringing goods seized by the Court Receiver, to be distributed amongst the poor children and the seized wrappers to be destroyed by the Parties.
Reliance Jio Dials Down Trademark Infringement
Reliance Industries, the Indian conglomerate, filed a suit before the Mumbai High Court seeking a permanent injunction against Dhananjay Dinkarrao Khairnar for using the trademarks JIOFIT, JOIFER, JIO-4G and JIO-4EVER. Reliance claims these marks are deceptively similar to its registered trademark JIO. The Court issued a permanent injunction and instructed Dhananjay to return all goods bearing impugned trademarks to Reliance. A court receiver has also been appointed to take charge of the disputed goods and remove contents in the packing material and hand it over to Reliance for destruction.
Swarovski’s Shining Trademark Win
Swarovski Aktiengesellschaft, a well-known crystal jewelry maker filed a suit seeking a permanent injunction against Durgesh Kumar Patwa, proprietor of M/s. Bajrang Beads for infringing their registered trademark “SWAROVSKI” and logo. Durgesh was engaged in selling, manufacturing, soliciting and trading jewelry, gemstones, artificial stones or allied products using the mark/label SWARAWSKI, SWAROVSKI, and its logo and its variants having artistic features, getup, layout and lettering style similar to that of Swarovski. On the basis of the documents filed and the evidence, the Delhi High Court noted that Swarovski is the registered owner of the trademark SWAROVSKI and its logo and the trademark have acquired distinct features due to the long and continuous use. The Court further, awarded damages of INR 25,000 to be paid to Swarovski.