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What is trademark?
KFC’ is the trademark for Kentucky Fried Chicken. So if you see the
word ‘KFC’ you immediately associate the same to fried chicken.
Another example would be ‘Amul’. A person seeing this word would
immediately associate the trademark to the dairy goods it produces like
milk, butter etc.
A trademark can be a word mark, service mark or logo mark. An
example has been given below for the company Apple Inc., well known
for their electronic goods.
A trademark identifies the brand owner of a particular product or service[6]. Trademarks
can be used by others under licensing agreements. the owner of a trademark may
pursue legal action against trademark infringement.
Designation –
TM MEANS that you have applied for a trademark, but the trademark has not
been registered yet . the govt takes 18-24 months to register ur trademark
after which you get a trademark registeation certificate .
SM means service mark , for unregistered service mark , a mark used to
promote or brand service.
R is for registered tm. Service mark is when a tm is used in relation to service rather
products , it may be called as service mark
Functions of a trademark
a) It identifies the goods or services of one trader and distinguishes
them from the goods of another trader.
b) It signifies that all goods bearing a particular trademark come from a
single source and are of an equal quality.
c) It is a prime instrument in advertising and selling the goods or
services.
MOVING ON my topic , infringement .in. is when there is
contravention or violation of specific act, law , agreement with
respect to trademark , there is a violation when you use a trademark
which is confusingly similar or identical; to a trademark that is already
registered . when this happens who buy certain goods or use the
services will not be able to distinguish between the brand hence, the
user who has the trademark registered will face losses.
Infringement can only take place if a trademark has been registered. A
trademark owner whose trademark has not been registered cannot
bring an infringement suit. Section 29 and 30 of the Trademarks Act,
1999 specifically lays down the provisions for protection of the
registered trademark when infringed.
In the below images, one depicts the registered McDonalds
trademark while the other depicts a copycat. Hence Mc Dowell’s
has infringed McDonald’s trademark.
Likelihood of confusion
Sometimes the trademark relating to a particular set of products and goods
may cause confusion in the minds of the buyer if they are similar. So when
two trademarks resemble each other, this will cause deception among buyers
thus defrauding the customers and infringing the right of the registered user of
the trademark. For example, if A sells matchsticks with the registered
trademark ‘ABC MATCHES’ and B, who newly enters the market decides to
sell matches with the trademark ‘ABCD MATCHES’, the people who go to buy
the products will be confused and thus may end up buying B’s products thus
causing loss to A.
Deceptive marks
Deceptive marks are likely to cause confusion in the general public. Thus to
know if there is a case of infringement, an overall similarity of the goods are
taken into account. Deception takes place in the three following ways:
b) Deception as to goods
If A sells, ORLWOOLA for shawls, it would suggest that the shawls are made
of all wool when in fact it is made of cotton. Here, this is a case of deception
as to the goods.
c) Deception as to the trade connection
If there is A who deceptively sells cars with the trademark ‘ TATA
ROADSPEED’, it is a case of infringement as it is very well know that ‘TATA’
is a registered trademark by the TATA Group. Thus the buyers might
associate A’s car to the TATA group.This is a case of deception as to the
trade connection.
Identical marks
When both the trademarks are clearly identical to each other that is, without
change in the spelling, style of writing, logo and phonetically similar, it is a
case of infringement. For example, if, A sells butter with the registered
trademark ‘SUCAM’ and D sells butter also with the name ‘SUCAM’, it is a
clear case of trademark infringement.
In simple words, if a person sells his goods as the goods of another, then the
trademark owner can take action as this becomes a case of passing off.
Passing off is used to protect the goodwill attached with the unregistered
trademark.
When the trademark has been registered by the owner, it becomes a suit for
infringement, but if the trademark has not been registered it becomes a case
of passing off.
Example: A runs a company that sells electronic goods. The trademark for his
company is ‘SPEEDELECTRO’. He has been using the trademark for over 12
years, but has not registered the same. A company XYZ decides to sell their
electronic goods also as ‘SPEEDELECTRONICS’. In the mind of the people
who decide to buy the goods, they would associate ‘SPEEDELECTRONICS’
as ‘SPEEDELECTRO’ and thus because of the acquired good will of A’s
company, they would purchase XYZ’s products.
i. Statutory remedy
PASSING OFF
iv. Not only presumption of confusion among the public but also
deception of the public and injury to the goodwill of the Plaintiff has to
be proved.
v. Can institute the Passing Off suit only where the defendant resides
or carries out work.[ As per Section 20, Civil Procedure Code,1908]
Registration –
2. Trademark filing
After the formulation of search report , application for the future report will be made, this
application can be filed online. An application shall be contain the following mandatory
details: logo/mark/tagline or the mark, name & address of the owner(
individual/company/firm), classification of the trademark class, date since which the
logo/mark/tagline is used, description of the goods and service, once the application is filed
the registry will issue official receipt with the file date and number allotted to the
application.
4. Examination
This is the next stage after Vienna codification. Upon completion of Vienna codification, the
application will reach the desk of a designated officer(to). The to has the right to either to
accept the application or send it to the other stage or raise objection. The to review the
application and issue the examination report for this purpose.
5. Journal publication
6.
This is the next stage after the application is pass by the to, wherein the purpose trademark
is published in the trademark journal, the trademark journal is published every week. Once
the mark is published in the journal, public have a opportunity to object to if it they have
substantial grounds. The third party has to file the trademark opposition within three
months (extendable by 1 month) from the date of publication of the trademark.
7. Trademark registration
If there are no opposition within 4 months from the date of the advertisement in the trade
marks journal, when the trade mark registration certification will be issued. The registered
trademark is valid for the period of 10 years from the date if application. Registration can be
renewed indefinitely as long as the renewal fees are paid every 10 year.
International trade law is the law regarding international commerce
It has two aspects public & private, the public aspect of ITL seeks to coordinate commercial
policies of states & its the part of public international law, the private of INTL government
international commercial translate between the people belonging to different states . This is
convered under private international law.
Free trade :- before the enomores of the modern state system people including merchant
could move freely subject to their own physical limitation . there were no customize tariff
but wheather the organisation state system come into extensive 17th century custom duty
where introduce