Skip to main content

Trademark Infringement Penalties in India - Part 1

 Trademark Infringement Penalties in India - Part 1



Introduction

A mark used in the course of trade is known as Trademark. Trademark is nothing but a sign or a mark serving some purpose for its owner. The Trademarks Act, 1999 defines mark under Sec.2(1) (m)) which includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof. 


The paramount function of a trademark is to differentiate or distinguish goods or services. It is used to distinguish goods or services of one trader from those of others. Trademark means a mark capable of being represented graphically and which is capable of distinguishing the good or services of one person from those of others and may include shape of goods, their packaging and combination of colours and the same is defined under Sec. 2 ((1) (zb)).  Trademarks identify the source of goods, while service marks identify the source of services. The Trademarks Act, 1999 included the services as well to be protected as a service mark under the trademark. 


Functions of the Trademark 

The primary function of the trademark is to identify the product or services with a particular trader or manufacturer or owner. It serves the purpose of being a bridge between the consumer and the trader. Therefore, the mark functions as a carrier of reputation and goodwill of the trader and guarantees the consumer with some assured quality. 


Requirements of a Trademark to register:

If the mark is registrable, the best way to protect is by registration. Thus, a trademark must contain at least one of the following essential features to register:

  1. that it must be represented graphically

  2. it should be distinctive in nature

  3. it must indicate the source or origin 

  4. it must be capable of being applied on goods or services. 

In India, the Trademark Act, stipulates only the requirements for registration and grounds for refusal of registration. 


Grounds for refusal


The application for the registration of trademark could be refused by the trademark registry on various grounds. These grounds have been classified into two different categories, namely absolute grounds for refusal of registration (Sec.9) and relative grounds for refusal of registration (Sec 11). 


(i) Absolute grounds for refusal- Sec.9 :


The grounds which are considered to be absolute grounds for refusal of registration are :

a. Marks that are devoid of distinctive character

b. Marks indicating nature/characteristics of goods or service i.e if the mark is descriptive in nature.

c.  Generic marks, customary marks used commonly on the trade. 

d.  Marks of such nature to deceive the public

e. Marks likely to hurt religious sentiments

f. marks containing obscene or scandalous material

g. Marks prohibited under the Names and Emblems Act. 


(ii) Relative grounds for refusal- Sec.11

Apart from absolute grounds for refusal of application for registration of marks there are certain other grounds on the basis of which applications for trademark can be refused. These other grounds are called as relative grounds and section. Absolute grounds provide prima facie reason to reject the application without any further evidence or proof whereas relative grounds do not provide prima facie reason for rejecting the application. The mark shall not be registered if :


1. if the mark is identical/similar to an existing trademark.

2. there is any likelihood of confusion on the part of the public

3. there is any likelihood of wrongful association with the earlier mark (Sec. 11) 



Part 2 to be continued with Infringment of Trademarks and the Penalities.

Comments

Post a Comment

Popular posts from this blog

Suggestion to Indian Trademark Classification of Goods and Services

I cannot guess whether dream has come true or some miracle has happened. Yesterday night I was thinking of classification of goods and services for registering trademarks, as to why there is no proper and elaborate explanation of those goods or services. Rather than saying elaborate, I would suggest to explain it in a very simple english (But most of the laws in India are complex !!!!). I filed an application to register trademark recently for an online shopping site. I did not know whether it comes under goods or services, perhaps it is a service where in the shopping site sells books to consumers,  therefore I was adviced to file it under Class 35 which includes Advertising, Business Management, Business Administration, Office Functions along with Explanatory notes. If this is the case, then why some sites are registering in the Goods Class also when they are not manufacturing that good. For eg., India's Popular Online Shopping Site Flipkart.com has registered its ...
1 comment
Read more

My mistakes........My learnings !!!!!!!!!!!!!!!!!!

Mistakes are always a part of our life and overcoming from such mistakes is a lesson to learn in our day to day's life. Yes, I have made a lot mistakes in and around my career and it has taught me a handful of lessons each day and I am confronting it as and when I face. After all, every person has to go through the mistakes and the one who comes out of it has great experiences. Learning, learning and learning................. I thought of jotting down certain tips that tomorrows professionals should do to excel in their career: Keep learning and update the knowledge in your profession and your area of practice. Participate in the events that help to learn new concepts as well as gather information. While you pay for an event or any course, it is not the amount which runs out of your pocket but that's your knowledge investment. Share your own tips in the comment. 
Post a Comment
Read more

Cloud Computing : Google has been issued patent for cloud based file storage

After a long time I am back with second innings to write my most favourite and sensational topic in today's IT world - "The Cloud Computing" . The word "Cloud Computing" has been still a buzz word in the IT Industry due to its versatile structure and characteristics where anything as a Service can be offered is the mantra. Yes, apart from its existing three kinds of service models, IAAS (Infrastructure as a Service), PAAS (Platform as a Service) and SAAS (Software as a Service) , I am able to see many of them are discussing other service models like Network as a service, Analytics as a Service and may be there are more. Perhaps what does The Cloud has extraordinary to give to the Public in common is the Storage as a Service. The free space given by the service provider to the end users like us. There are lot of service providers where we use them in our day to day's life for eg., Google's Drive, Microsoft's Skydrive or Dropbox Storage. In gener...
Post a Comment
Read more