View of INDIAN TRADEMARK LAW: A STUDY WITH REFERENCE TO TRADE, COMMERCE AND INDUSTRY

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VOLUME: 08, Special Issue 04, (ICESD-2021), Paper id-IJIERM-VIII-IV, June 2021

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INDIAN TRADEMARK LAW: A STUDY WITH REFERENCE TO TRADE, COMMERCE AND

INDUSTRY Prof. Gagan Mittal

Assistant Professor, Dept. of Management, St. Paul Institute of Professional Studies, Indore Abstract- Intellectual property is a right which is pervading some material object. The intangible products of a man’s brain are more valuable than his lands, money buildings, belongings, goods, etc. It is quite different from formal or a real property. In fiction, it is a kind of property. Hence, it is called as intellectual property. The rights concerning to the intellectual property are recognized by Indian law as the subject matter of rights of various intangible products i.e. skills and labour, human intelligence etc. In brief intellectual property is basically relates to intellect or a creation of intellect. The intellectual property rights are basically a legal rights which govern the use of creations of the human mind and work.

Intellectual property rights have grown to a position from where it plays an integral role in the economy development of global over the past two decades. In 1990s, laws were strengthened in this area by many nations unilaterally. In the multilateral level, there was enhanced protection and enforcement of IPRs to the level of solemn international commitment because of the successful conclusion of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in World Trade Organization. There is avast domain of intellectual property. Since a long time Copyrights, Designs, and Patents Trademarks have received recognition. Newer forms of the protection are also developing particularly encouraged by the stimulating emergence in scientific and technological activities. Many enactments has been adopted by Indian Government and various judicial decisions has been passed by Apex Court for safeguarding Intellectual property rights.

Traditionally, trademarks were considered as convenient tools for source identification, and were granted legal recognition on this premise. However, more recently, trademarks have evolved in a new yet challenging medium as an effective tool for both corporate and social communication. The changing nature of trademarks and the subsequent emergence of modern trademark functions have prompted legal change within the European Union. Whilst this result is not in itself surprising, the approach adopted within the EU for the integration of the modern functions into the European trademark system has raised justifiable concerns on whether the balance of the trademark system has been disrupted.

1 INTRODUCTION

Intellectual property rights has grown to a position from where it plays an integral role in the development of economy of World over the past many decades. From 1990s, laws and are strengthened in this specific area by many nations unilaterally. In the multilateral level, there was protection at enhanced level and enforcement of Intellectual property rights to the level of solemn international commitment because of the successful conclusion of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in World Trade Organization. There is a vast domain of intellectual property. Copyrights, Designs and Patents Trademarks have received recognition from a long time. New forms of the protection are also developing particularly encouraged by the stimulating emergence in scientific and technological activities.

Intellectual property rights: Intellectual property rights are the rights given to persons over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time.

What is Trademark: A trademark is a visual symbol in a word form or in the form of colour, label, applied to products for sale with a view to indicate the consumer that the said product is manufactured by a particular person or organization with a denite source of origin and subsequently to differentiate that product from that of any other person's or organisation's product of similar type and function. By applications of this mark the

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manufacturer or seller gets a limited exclusive right to use the trademark in relation to that product. Such a right of the use of mark is recognised as a Trademark and can seek protection under common law or by registering it under the Trade Marks Act 1999 which has come over the earlier existing Trade and Merchandise Marks Act 1958. The Trade Marks Act, 1999 and the Trade Marks Rules, 2002 govern the law relating to Trade Marks in India.

1.1 The Trade Marks Act, 1999:

The law of trademarks is also now modernized under the Trademarks Act of 1999. A trade mark is a symbol for distinguishing the goods put in the market and offered for sale by one dealer from another. In India, the trademarks were protected for more than four decades as per the provisions of the Trade and Merchandise Mark Act, 1958. Thereafter, India joined the World Trade Organisation. One of the agreements that is related to the Intellectual Property Rights (TRIPS). In December, 1998, India acceded to the Paris Convention. Also, The Trade Mark bill which was introduced in 1994, is the result of vast modification made in Trade and Merchandise Marks Act, 1958. The said modification can be called modernization made for commercial practices and easy trading, to increase trading overseas by globalization and bring investment from overseas and most importantly to make trademark management system as simple and possible and more recognition of the same in judicial system.

The bill could not be passed due to some reasons but pointed out the areas where the huge changes of the required development in numerous areas, such as commercial and trade practices, globalisation etc., the same was thereafter passed in the Parliament and replaced with Trade and Merchandise Act, 1958 with assent of the President on 30th December, 1999; the introduction of Trade Marks Act, 1999 has been proved to be very fruitful to India for going global in commerce and trade area.

The salient characterstics of the Act mainly includes:

1. Earlier goods and services were covered by the way of registration, but in this Act the infringement has broaden the meaning as it must also includes confusingly similar mark or unauthorized use of similar mark where the goods and services which are similar and create confusion.

2. Even though where the unauthorized use of trademark is made of any well known trademark of India and the right and interest of the owner is any way infringed, the legal action of infringement can be taken against the same.

3. Further, it gave more power to police agency by authorizing them to seize and seal any infringing material without any warrant issued.

2 LITERATURE REVIEW

Drahos, P. (1996): Are IPRs like other property rights? More and more of the world’s knowledge and information is under the control of IPR owners. What are the justifications for this? What are the implications for power and for justice of allowing this property form to range across life? The author addresses these questions and argues that what lies at the heart of intellectual property are duty-bearing privileges. We should adopt an instrumentalist approach to intellectual property and reject a proprietary approach - an approach which emphasises the connection between labour and property rights.

David, P. (1993): A concise but thoroughly comprehensive overview of the history and economics of patents, copyrights and trade secrets. In conclusion the author argues that proposals to establish a uniform international regime of IPR protection are not practical, even though careful economic analysis would indicate that there may be considerably more points of agreement between the interests of the technologically advanced and the developing countries than has often been supposed.

Gerhart, P. M. (2000): The author argues that the machinery of law-making in international intellectual property is not designed to give us a global system that comes anywhere near a socially optimum system. He suggests that corporate consumers (such as health insurance companies that pay for patented drugs) should form coalitions to shape intellectual property policy so as to ensure a more balanced system.

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Kinsella, N. S. (1998) : Patent lawyers take for granted the legitimacy of having a patent system, and intellectual property lawyers in general would probably be surprised to know that the legitimacy of IPR laws historically has been, and continues to be, the subject of some controversy, at least in theoretical or academic circles. The author reviews some of the historical and contemporary justifications for and criticisms of IPRs and argues that IPR lawyers should be prepared to question and reflect on these widely-held justifications.

Maskus, K. E. (2000) Intellectual Property Rights in the Global Economy: This book provides a comprehensive economic assessment of the effects of stronger IPRs 12 through the TRIPS Agreement. The author presents findings on the potential effects of stronger global IPRs, including likely impacts on foreign direct investment, technology transfer, and pricing under enhanced market power.

Roffe, P. (2000) “The political economy of intellectual property rights: This paper deals with the expansion of the intellectual property system and with its controversial evolution going back to Renaissance Italy. The authors focuses on such periods as the 1970s when there was a reformist movement that resulted in the weakening of IPR standards in many countries, and the TRIPS era, which began in the early 1990s, and pushed IPR standards in the opposite direction.

2.1 Objectives

1. To discuss the evolution of trademarks 2. To discuss the functions of Trademark 3. To discuss the importance of trademark law

4. To discuss the role of trademark in the trade, Commerce and industry sector 2.2 Hypothesis

1. The trademark law helps to protect the goods from illegal activity in trade, commerce and industry sector.

2. After Passing the trademark law there is less chances to product infringement.

3 METHODOLOGY OF THE STUDY

Basically, this Paper is descriptive in nature and based on the existing literature and published secondary data, the economic perspectives of trademark is discussed to examine the trademark roles for creating brand and value of the enterprises and to understand the impact of trademark in trade, commerce and industry sector.

3.1 Rational of Study

The economic rationale for IP rights is that it is in everyone’s long-term interest for people and businesses that create knowledge to have well-defined, enforceable rights to exclude third parties from appropriating their ideas, or the expression of their ideas, without permission. Failing to put restrictions on appropriating others’ inventions and creations would dilute the rewards for investing in innovation, thereby reducing the incentives for making such investments.

3.2 Evolution of Trademark

Evolution of Trademarks in India The replacement of Trademarks and Merchandise Act, 1958 gave rise to the Trademark Act 1999; by the Government of India so that the Indian Trademark Law gets compliant with the TRIPS obligation on the recommendation of WTO.

The objective of the 1999 Act was to confer the protection to the user of the trademark on his goods and prescribe conditions on acquisition, and legal remedies for enforcement of trademark rights. For the rst time it provided protection for service marks and give provision of registration for collective marks, it also differentiated between well-known trademarks and trademarks in general, and also special treatment and rights are envisaged for well-known trademarks. The act of 1999 gave police the right to arrest in case of infringement. There are some points of changes that are present between the 1958 act and 1999 act, it can be said that the 1999 act is a modication of the 1958 act, it has provided exhaustive dentitions of terms frequently used, enhanced punishment for offenders,

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increased the period of registration, registration of non- traditional trademarks. The rules of this act are called as Trademark Rules 2002. Both the Act and its set of rules came to effect on 15 September 2003. The Trademark Act 1999 and Trademark rules 2002 presently govern Indian Trademark Laws in India.

3.3 Importance of Trademark Law in India

A Trademark plays an important role in promoting the goods and provides information about the quality of the product. It enables an enterprise to acquire individual rights to utilize, distribute or assign a mark. This can be done through Trademark Registration.

India is a huge competitive market for business and company owners, where there are vast numbers of new yet identical brands/products that keep emerging everyday. Here, protecting your brand becomes necessary to prevent anybody else taking the advantage of your name or brand.

3.4 Functions of Trademark:

1. It identifies the product and it’s origin.

2. It proposes to guarantee its quality.

3. It advertises the product. The trademark represents the product.

4. It creates an image of the product in the minds of the public particularly the consumers or the prospective consumers of such goods.

5. To identify goods or services of one seller and separate them from goods or services sold by others.

6. To signify that all goods or services bearing the trademark come from a single source, albeit anonymous source.

7. To signify that all goods tack the trademark are of an equal level of quality 8. As a prime instrument in selling and advertising the goods or services.

9. Renting by way of licensing of franchising. Trademarks serve two or more functions which are referred to as double function of the trademarks adding up to seven functions.

10. Protecting the public against confusion and deception by identifying. The source of origin of particular products as distinguished from other similar products.

11. Protecting the trademark owner’s trade and business as well as the goodwill which is attached to his trademark.

3.5 Importance of Trademark in Trade, Commerce and Industry Sector

1. Trademarks are an effective communication tool. In a single brand or logo, trademarks can convey intellectual and emotional attributes and messages about you, your company, and your company’s reputation, products and services.

2. Trademarks make it easy for customers to find you. The marketplace is crowded and it’s hard to distinguish your business from your competitors. Trademarks/brands are an efficient commercial communication tool to capture customer attention and make your business, products and services stand out.

3. Trademarks allow businesses to effectively utilize the Internet and social media.

Your brand is the first thing customers enter into a search engine or social media platform (Facebook, Twitter, Pinterest) when looking for your products and services.

4. Higher traffic on a website or social media platform translates into higher rankings, bringing even more traffic, more customers and more brand recognition.

5. Trademarks are a valuable asset. Trademarks can appreciate in value over time. The more your business reputation grows, the more valuable your brand will be.

6. Trademarks provide value beyond your core business. Trademarks can lead the way for expansion from one industry to another, such as from personal care to clothing or eye ware. If you desire it, your trademark can lead to the acquisition of your business by a larger corporation.

7. Trademarks can make hiring easier. Brands can inspire positive feelings in people’s minds. As a result, employment opportunities are more attractive to candidates.

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Employee retention can be higher if employees have positive feelings for the brand and the products and services offered.

8. Trademarks are a bargain to obtain. The United States Patent and Trademark Office charges as little as $275 to obtain trademark registration, only a few hundred dollars after five years and another few hundred dollars every ten years.

9. Trademarks never expire. Your trademark will not expire as long as you are using it in United States commerce. Some of the most recognized brands in the United States today have been around for over a hundred years. Mercedes was first registered in 1900. Pepsi-Cola was registered in 1896.

4 FINDINGS

1. With trademark registration, a label, brand, or business can manage to gain an extreme amount of exclusivity. Also, the customers and target audience shall uniquely identify your products and services and differentiate them from those offered by your competitors in the market.

2. When a trademark exists for a brand or business, the value of its products and services – increases exceptionally and automatically. Additionally, it becomes comparatively easier to advertise, promote, or market a brand with its corresponding registered trademark. Last but not least, as the most profitable aspect, a trademark holds immense potential for enhancing the product’s overall market value.

3. For having a competitive edge and advantage over your potential rivals, it is essential to go ahead with getting your trademark registered. As a crucial business element, a trademark adds to the value of the brand and increases brand awareness.

4. It is integral for a company or organization to protect the brand’s entity or name by getting the trademark registered and displaying ownership of trademark rights. With trademark registration, the owner shall own the exclusive rights to utilize, sell, distribute, license, or alter that product in any manner.

5. On being successfully registered, trademark protection can last up to a lifetime, with the renewal term being once in every ten years.

6. When it comes to communication, a trademark is indeed the best tool as it gives unique and relevant information about a company’s products and services, and portrays a positive reputation.

7. A registered trademark offers ease to online users by helping them in distinguishing between a large number of products and services and finding the most relevant one for themselves. Many search engines, like Google, and social media platforms like Facebook and Instagram, are capable of identifying the trademarked products quickly within a few clicks. Consequently, there is a higher degree of brand reputation for a business on the Internet as well.

8. The owner of the registered trademark is entitled to initiate legal proceedings, file a lawsuit against the violators, and even demand monetary damages or compensation if under any circumstances his trademark rights are infringed.

5 SUGGESTIONS

1. A trademark must be a mark which includes a device, heading, brand, label, ticket, signature, word, letter, name, numeral, packaging or combination of colors or any combination of the above attributes.

2. It should be easy to speak and spell. A good trademark is such that the public can easily spell and speak.

3. It should be easy to remember. A good trademark that is easy to speak and spell can be easily remembered as well. So that it becomes easy for public to understand.

4. It should not be too lengthy and complicated to be forgotten easily. If it is lengthy or complicated, people will not bother to take the effort to memorize it and ultimately it will be forgotten.

5. It must be distinctive. It can be natural distinctiveness or acquired distinctiveness.

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6. The best trademarks are invented words or coined words or unique geometrical

designs

7. It can only be suggestive of the quality of the products, but not descriptive.

6 CONCLUSION

Intellectual property rights have grown to that position from where it plays an integral role in the global economy’s development over the past many decades. In 1990s, legislations and regulations were strengthened in this specific area by many nations unilaterally. In the multilateral level, there was enhanced enforcement and protection of IPRs to the level of solemn international commitment because of the successful conclusion of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in World Trade Organization.

There are a vast domain of intellectual properties such as Designs, Copyrights, and Patents Trademarks since a long time they have received recognition. Newer forms of the protection are also developing in this new scenario particularly encouraged by the stimulating emergence in scientific and technological activities. The Intellectual Property Rights (IPR) has economic, social, technological and political impacts. Globalization, Rapid technology and fierce competitions leading to protect the innovations from violations by the help of IPR such as trademarks, patents, industrial design registration, service marks, copyrights and trade secrets. But still there is infringement of Intellectual Property Rights. The Government of India is also taking specific measures to prevent them. There are numerous enactments regarding the prevention of Intellectual Property Rights Infringement. The Supreme court is doing tremendous work to protect Intellectual Property Rights.

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