What is a trademark in Intellectual Property Rights?
Author: Tanya Bhadauria
A Trademark is a mark that creates the identity of a business. This mark may be a word, phrase (group of words), symbol or a design. A trademark distinguishes a brand from other similar products/services. For eg. the word ‘Samsung‘ is a trademark of a company which produces smartphones. It is used to create the identity of a business and distinguish the same from other similar competitors. Thus, people use a trademark to identify a particular business in a group of other similar ones. In India, Trademarks are registered as well as protected under The Trademark Act,1999. A Trademark is an intellectual property right.
Intellectual property is the property of a person that is created with the use of his intellect. In simple words it is a property created by a person using his own brain, creativity or other skills. It includes properties such as any design, art, literary works, peculiar brand name, etc. The rights arising out of these properties are known as intellectual property rights. Properties protected under these rights are classified under various categories such as, Trademark, Copyright, Geographical Indications, Designs, Patent. In this article we will discuss about Trademarks.
What Qualifies As A Trademark?
Any word, phrase, design, unique marks, such as color marks, sound marks, picture mark, etc. can be used as a trademark. Thus any specific visual mark that allows people to identify a particular business can be used a trademark.
Types Of Trademarks
Generic – It refers to when the name of the product is itself used as the brand name or trade mark.
- For eg. when a company producing salt uses ‘Salt’ as its brand name or trademark.
- Such trademarks are considered to be the weakest ones.
- These trademarks cannot be registered under the act and are never protected.
Description – These refer to the trademarks which describe the characteristics of the product or service they are used for.
- For eg. ‘Clean and Clear’ for a skin product serving clean as well as clear skin.
- Such trademarks are of weak strength.
- These are protected under the trademarks act.
Suggestive – These are marks which are suggestive in nature. These suggest the characteristics of the product/service they are used for.
- For eg. Infosys for an information technology company, Burger King, Netflix, Airbus, etc.
- These are considered to be of good strength.
- These are fairly protected under the act and generally not very difficult to get registered.
Arbitrary – These are trademarks which are chosen randomly (arbitrarily), and don’t have any relation with the product or service.
- For eg. Apple for smartphones or electronic products.
- These have strong strength.
- These can be generally easily registered under the act.
Invented – These are trademarks using words that do not have any dictionary meaning and are created by the holder themselves.
- For eg. Adidas, Google, Samsung, etc.
- These are considered to be the strongest trademarks.
- These are easiest to get registered.
Classification System
In India the NICE Classification (NCL) is accepted for classification of trademarks. Nice classification is an international system of classification used for classification of goods as well as services for registration of the marks. It defines 45 different classes that is 1-34 for products and 35-45 for services. In order to file for registration specific forms for the given classes are to be filled.
Legal Provisions Related To Trademark
In India Trademarks are registered under The Trademark Act,1999. The act makes various provisions for registration, protection, privileges, limitation and appeals related to trademarks.
A registered trademark is protected by the law. Any other person or business entity cannot use a registered trademark. However, if a trademark is not registered under the act, the law still protects it. The principle of prior adoption and use comes into force. That is, the person or business who adopts and uses a mark first becomes its rightful owner and others are hence prevented from using them.
In India the infringement of a trademark is a cognizable offence under Section 156 of the Code of Criminal Procedure, 1973. Sections 103 and 104 of The Trademark Act, 1999 provide the punishment for such infringement. As for civil remedy, the owner can file an injunction against the perpetrator.
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