Trademarks In India - An Overview

Trademarks in India are legally protected under the Trademark Act of 1999 and the common law passing off remedy.

The Administration of this protection under the Act is under the control of the Controller General of Patents, Designs, and Trademarks .The Trademark Act of 1999 focuses on trademark registration, protection, and preventing unauthorized use. It also covers the rights of the trademark owner, fines for infringement, compensation for harm, and methods of trademark transfer.

Registration of Trademark

Anybody wants to file for a trademark must play by the law specified in Section 18 of the Act. According to the Section, anyone requesting a trademark must do it in writing and in the way specified for registration. The application must include the name of the mark, the goods and services, the class that the goods and services fall under, the duration of the mark's use, and the applicant's personal information, including name and address.

Infringement of Trademark

Infringement refers to the violation of another person's rights. As a result, trademark infringement refers to the breach of trademark rights. When a trademark or a mark that is substantially similar to a trademark is used on products or services of a similar nature without authorization, that usage is referred to as trademark infringement. In this situation, the court will consider whether the customer will be confused about the real brand they are buying as a result of the trademark usage.

Therefore, a trademark is violated under the Act if:

• If the trademark infringer uses it for commercial purposes.
• if the trademark infringement prints or uses the mark in advertisements.
• if the trademark is a minor modification or addition to a registered trademark.
• if a consumer is likely to be misled or confused when choosing a product category because the mark used is so similar to a registered mark.

A lawsuit for damages may be filed in the event of trademark infringement. The following prerequisites must be completed in order to file such a lawsuit:

• The plaintiff in the lawsuit must be the trademark's registered owner.
• The trademark being violated (defendant) must be so similar to the plaintiff's mark as to be easily mistaken for one another.
• The defendant's use of the mark must be in connection with products or services that are similar to those for which the trademark is registered.
• Such usage by the Defendant is not unintentional.

Trademark Classification

The categorization of trademarks in accordance with the international classification of products and services is mandated by Section 7 of the Trademark Act, 1999. A total of 45 classes are available for goods and services to be classified under. The Nice Categorization (NCL), a global classification scheme, was created in 1957 as part of the Nice Agreement.

The NCL lists 45 classes under which products and services can be classified. Classes 1 – 34 deal with products, while classes 35 – 45 deal with services.

Objecting to a Trademark Registration

During the trademark registration process , the general public is given the chance to object to the registration of a trademark. Anyone can file an opposition to registration; it could be a client, a rival, or a member of the public.

When a trademark is being registered, the mark will be advertised in the Trade Mark Journal. Anyone may then file an opposition to the mark within three months following the publication. In exceptional circumstances, this three-month period may be extended by no more than one month. The Intellectual Property Appellate Board is not where the opposition must be filed; rather, it must be filed with the Trademark Registrar's Office (IPAB). The following must be included when filing an opposition:

• Information about the trademark application that is the subject of the objection.
• Information about the previous mark that is being violated by the registering mark. It can be a mark that has previously been registered or one that is still being registered.
• Information about the filing party
• Fundamental reasons for this opposition's foundation.

Conclusion

The entirety of the Trademarks Act of 1999 does away with the cumbersome provisions of the previous act, and it has undoubtedly greatly bolstered the rights of business owners and other service providers. It functions as a warning to those who infringe.