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Trade mark2

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Subhra Sinha
Subhra Sinha

The document discusses key aspects of trademark law in India such as definitions, registration procedures, and penalties for infringement. It defines what constitutes a trademark under Indian law, including that it must be capable of graphical representation and distinguishing goods and services. It also defines related terms like trade names, service marks, and collective marks. The summary discusses registration requirements, procedures, duration and ownership rights. It notes that unauthorized use of a registered trademark is punishable by imprisonment and fines under Indian law.

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SUBHAR SINHA, AMITY GLOBAL BUSINESS SCHOOL,INDORE
TRADE MARK According to Section 2 (zb) of the Trade Marks Act, 1999, trade mark means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours. A mark can include a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any such combinations. SUBHAR SINHA, AMITY GLOBAL BUSINESS SCHOOL,INDORE
TRADE NAMES Trade names are names, terms or designations that serve to identify and distinguish an enterprise and its business activities from those of other enterprise and its business activities Whereas the trademark distinguishes the goods or services of an enterprise, a trade name identifies the entire enterprise and symbolizes the reputation and goodwill of the business as a whole. SUBHAR SINHA, AMITY GLOBAL BUSINESS SCHOOL,INDORE
TRADE NAMES The main reason for protecting trademark and trade names against infringement is that the public might be misled into thinking that two separate enterprises using same or confusingly similar trademark or a trade name constitute one and the same enterprise It is not only harmful to the consumers but it also permits the infringing enterprise to benefit unfairly. SUBHAR SINHA, AMITY GLOBAL BUSINESS SCHOOL,INDORE
MEANING OF TRADE MARK Trademark is a symbol that indicates who is responsible for the goods placed in the market Trademarks help to distinguish between the goods of competing traders Trademark helps a customer to buy goods of a certain quality (e.g. color, size, weight, fragrance, taste.) SUBHAR SINHA, AMITY GLOBAL BUSINESS SCHOOL,INDORE
SERVICE MARK Where a trademark is used in connection with services, it may be called service mark. Service marks are used by hotels, restaurants, airlines, tourist agencies, laundries and cleaners etc. SUBHAR SINHA, AMITY GLOBAL BUSINESS SCHOOL,INDORE
STATUTORY DEFINATION TRADE MARK: Section 2(1) (m) of TM Act, 1999 defines Mark as Mark includes a Device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packing or combination of colours or any combination thereof. SUBHAR SINHA, AMITY GLOBAL BUSINESS SCHOOL,INDORE
STATUTORY DEFINATION SERVICE MARK: Section 2 (1) (z) It means service of any description that is made available to any potential users and includes the provision of service in connection with business of any industrial or commercial matters such as banking, communications, education, financing, insurance, chit funds, real estate, transport, storage, material treatment, processing, supply of electrical or other energy, boarding, loading entertainment amusement, construction, repair, conveying of news or information and advertising. SUBHAR SINHA, AMITY GLOBAL BUSINESS SCHOOL,INDORE
STAUTORY DEFINATION COLLECTIVE MARK: Section 2(1) (g) A Trade mark distinguishing the goods or services of members of an association of persons not being partnership firm from those of others The proprietor of the mark is the association. The goods and services of a company or group of companies like GODREJ or HINDUSTAN UNILEVER LTD. may be the subject matter of collective Trade mark. It is not to be registered if it is likely to deceive or cause confusion to the public. SUBHAR SINHA, AMITY GLOBAL BUSINESS SCHOOL,INDORE
FUNCTION OF TRADE MARK 1. TM may be used to indicate that the goods are of a particular maker 2. The goods of that maker are of a particular kind or quality. 3. Trader may indicate his best quality by one TM, and his second best quality by another TM and so on. E.g. MRF with the symbol of person holding tyre is good quality and MRF written plainly indicates the second quality. 4. It serves the purpose of identifying the source of origin of goods. SUBHAR SINHA, AMITY GLOBAL BUSINESS SCHOOL,INDORE
THE REGISTER AND CONDITIONS FOR REGISTRATION 1. The Central Government may by notification in the Official Gazette, appoint a person to be known as the Controller- General of Patents, Designs and Trade Marks, whoshall be the Registrar of Trade Marks for the purposes of this Act. 2. Power of Registrar to withdraw or transfer cases 3 . Trade Marks Registry and offices thereof 4. The Register of Trade Marks. 5. Classification of goods and services 6. Limitation as to colour 7. Relative grounds for refusal of registration SUBHAR SINHA, AMITY GLOBAL BUSINESS SCHOOL,INDORE
8. Prohibition of registration of names of chemical elements or internaltional non-proprietary names. 9. Use of names and representations of living persons or persons recently dead 10. Registrartion of parts of trademarks and of trade marks as a series SUBHAR SINHA, AMITY GLOBAL BUSINESS SCHOOL,INDORE
PROCEDURE FOR AND DURATION OF REGISTRATION 1. Application for registration 2. Withdrawal of acceptance 3. Opposition to registration 4. Correction and amendment 5. Effect of removal from register for failure to pay fee for renewal 6. Duration, renewal removal and restoration of registration 7. Jointly owned trade marks SUBHAR SINHA, AMITY GLOBAL BUSINESS SCHOOL,INDORE
ASSIGNMENT AND TRANSMISSION Power of registered proprietor to assign and give receipt. The person for the time being entered in the register as proprietor of a trade mark shall, subject to the provisions of this Act and to any rights appearing from the register to be vested in any other person, have power to assign the trade mark, and to give effectual receipts for any consideration for such assignment Assignability and transmissbility of registered trade marks Assignability and transmissbility of unregistered trade marks SUBHAR SINHA, AMITY GLOBAL BUSINESS SCHOOL,INDORE
EFFECT OF REGISTRATION 1. No action for infringement of unregistered trade mark 2. Rights conferred by registration 3. Infringement of registered trade marks. 4. Limits on effect or registered trade mark 5. Registration to be prima facie evidence of validity 6. Protection of registration on ground of distinctiveness in certain cases 7. Saving for vested rights. 8. Saving for use of name, address or description of goods or services 9. Saving for words used as name or description of an article or substance or service SUBHAR SINHA, AMITY GLOBAL BUSINESS SCHOOL,INDORE
USE OF TRADE MARKS AND REGISTERED USERS 1. Subject to the provisions of section 49, a person other than the registered proprietor of a trade mark may be registered as a registered user thereof in respect of any or all of the goods or services in respect of which the trade mark is registered. 2. Where it is proposed that a person should be registered as a registered user of a trade mark, the registered proprietor and the proposed registered user shall jointly apply in writing to the Registrar in the prescribed manner (a) The agreement in writing or a duly authenticated copy (b) An affidavit made by the registered proprietor or by some person authoried to the satisfaction of the Registrar to act on his behalf SUBHAR SINHA, AMITY GLOBAL BUSINESS SCHOOL,INDORE
RECTIFICATION AND CORRECTION OF THE REGISTER 1. Power to cancel or vary registration and to rectify the register. 2. Alteration of registered trade marks. SUBHAR SINHA, AMITY GLOBAL BUSINESS SCHOOL,INDORE
CERTIFICATION TRADE MARK SECTION 2 (1) (E) THERE IS A SPECIES OF TRADE MARK CALLED AS CERTIFICATION TRADE MARK. ITS FUNCTION IS TO INDICATE THAT THE PROPRIETOR OF THE MARK HAS CERTIFIED THE GOODS BEARING THE MARK ASTO CERTAIN CHARACTERISTICS OF THE GOODS. E.G. GEOGRAPHICAL ORIGIN, INGREDIENTS AND SO ON SUCH AS ISI, AGMARK, FPO SUBHAR SINHA, AMITY GLOBAL BUSINESS SCHOOL,INDORE
OFFENCES, PENALTIES AND PROCEDURE Falsifying and Falsely applying trademarks A. Without the assent of the proprietor of the trade mark makes that B. Trade mark or a deceptively similar mark falsifies any genuine trade mark, whether by alteration, addition,Effacement (2) A person shall be deemed to falsely apply to goods or services a trade mark who, without the assent of the proprietor of the trade mark (a) Applies such trade mark or a deceptively similar mark to goods or services or any package containing goods. (b) Uses any package bearing a mark which is identical with or deceptively similar to the trade mark of such proprietor, for the purpose of packing, filling or wrapping therein any goods other than the genuine goods of the proprietor of the trade mark. SUBHAR SINHA, AMITY GLOBAL BUSINESS SCHOOL,INDORE
PENALTY FOR APPLYING FALSE TRADE MARKS TRADE DESCRIPTION Shall, unless he proves that he acted, without intent to defraud, be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees. SUBHAR SINHA, AMITY GLOBAL BUSINESS SCHOOL,INDORE
SUBHAR SINHA, AMITY GLOBAL BUSINESS SCHOOL,INDORE

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Trade mark2

  • 1. SUBHAR SINHA, AMITY GLOBAL BUSINESS SCHOOL,INDORE
  • 2. TRADE MARK According to Section 2 (zb) of the Trade Marks Act, 1999, trade mark means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours. A mark can include a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any such combinations. SUBHAR SINHA, AMITY GLOBAL BUSINESS SCHOOL,INDORE
  • 3. TRADE NAMES Trade names are names, terms or designations that serve to identify and distinguish an enterprise and its business activities from those of other enterprise and its business activities Whereas the trademark distinguishes the goods or services of an enterprise, a trade name identifies the entire enterprise and symbolizes the reputation and goodwill of the business as a whole. SUBHAR SINHA, AMITY GLOBAL BUSINESS SCHOOL,INDORE
  • 4. TRADE NAMES The main reason for protecting trademark and trade names against infringement is that the public might be misled into thinking that two separate enterprises using same or confusingly similar trademark or a trade name constitute one and the same enterprise It is not only harmful to the consumers but it also permits the infringing enterprise to benefit unfairly. SUBHAR SINHA, AMITY GLOBAL BUSINESS SCHOOL,INDORE
  • 5. MEANING OF TRADE MARK Trademark is a symbol that indicates who is responsible for the goods placed in the market Trademarks help to distinguish between the goods of competing traders Trademark helps a customer to buy goods of a certain quality (e.g. color, size, weight, fragrance, taste.) SUBHAR SINHA, AMITY GLOBAL BUSINESS SCHOOL,INDORE
  • 6. SERVICE MARK Where a trademark is used in connection with services, it may be called service mark. Service marks are used by hotels, restaurants, airlines, tourist agencies, laundries and cleaners etc. SUBHAR SINHA, AMITY GLOBAL BUSINESS SCHOOL,INDORE
  • 7. STATUTORY DEFINATION TRADE MARK: Section 2(1) (m) of TM Act, 1999 defines Mark as Mark includes a Device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packing or combination of colours or any combination thereof. SUBHAR SINHA, AMITY GLOBAL BUSINESS SCHOOL,INDORE
  • 8. STATUTORY DEFINATION SERVICE MARK: Section 2 (1) (z) It means service of any description that is made available to any potential users and includes the provision of service in connection with business of any industrial or commercial matters such as banking, communications, education, financing, insurance, chit funds, real estate, transport, storage, material treatment, processing, supply of electrical or other energy, boarding, loading entertainment amusement, construction, repair, conveying of news or information and advertising. SUBHAR SINHA, AMITY GLOBAL BUSINESS SCHOOL,INDORE
  • 9. STAUTORY DEFINATION COLLECTIVE MARK: Section 2(1) (g) A Trade mark distinguishing the goods or services of members of an association of persons not being partnership firm from those of others The proprietor of the mark is the association. The goods and services of a company or group of companies like GODREJ or HINDUSTAN UNILEVER LTD. may be the subject matter of collective Trade mark. It is not to be registered if it is likely to deceive or cause confusion to the public. SUBHAR SINHA, AMITY GLOBAL BUSINESS SCHOOL,INDORE
  • 10. FUNCTION OF TRADE MARK 1. TM may be used to indicate that the goods are of a particular maker 2. The goods of that maker are of a particular kind or quality. 3. Trader may indicate his best quality by one TM, and his second best quality by another TM and so on. E.g. MRF with the symbol of person holding tyre is good quality and MRF written plainly indicates the second quality. 4. It serves the purpose of identifying the source of origin of goods. SUBHAR SINHA, AMITY GLOBAL BUSINESS SCHOOL,INDORE
  • 11. THE REGISTER AND CONDITIONS FOR REGISTRATION 1. The Central Government may by notification in the Official Gazette, appoint a person to be known as the Controller- General of Patents, Designs and Trade Marks, whoshall be the Registrar of Trade Marks for the purposes of this Act. 2. Power of Registrar to withdraw or transfer cases 3 . Trade Marks Registry and offices thereof 4. The Register of Trade Marks. 5. Classification of goods and services 6. Limitation as to colour 7. Relative grounds for refusal of registration SUBHAR SINHA, AMITY GLOBAL BUSINESS SCHOOL,INDORE
  • 12. 8. Prohibition of registration of names of chemical elements or internaltional non-proprietary names. 9. Use of names and representations of living persons or persons recently dead 10. Registrartion of parts of trademarks and of trade marks as a series SUBHAR SINHA, AMITY GLOBAL BUSINESS SCHOOL,INDORE
  • 13. PROCEDURE FOR AND DURATION OF REGISTRATION 1. Application for registration 2. Withdrawal of acceptance 3. Opposition to registration 4. Correction and amendment 5. Effect of removal from register for failure to pay fee for renewal 6. Duration, renewal removal and restoration of registration 7. Jointly owned trade marks SUBHAR SINHA, AMITY GLOBAL BUSINESS SCHOOL,INDORE
  • 14. ASSIGNMENT AND TRANSMISSION Power of registered proprietor to assign and give receipt. The person for the time being entered in the register as proprietor of a trade mark shall, subject to the provisions of this Act and to any rights appearing from the register to be vested in any other person, have power to assign the trade mark, and to give effectual receipts for any consideration for such assignment Assignability and transmissbility of registered trade marks Assignability and transmissbility of unregistered trade marks SUBHAR SINHA, AMITY GLOBAL BUSINESS SCHOOL,INDORE
  • 15. EFFECT OF REGISTRATION 1. No action for infringement of unregistered trade mark 2. Rights conferred by registration 3. Infringement of registered trade marks. 4. Limits on effect or registered trade mark 5. Registration to be prima facie evidence of validity 6. Protection of registration on ground of distinctiveness in certain cases 7. Saving for vested rights. 8. Saving for use of name, address or description of goods or services 9. Saving for words used as name or description of an article or substance or service SUBHAR SINHA, AMITY GLOBAL BUSINESS SCHOOL,INDORE
  • 16. USE OF TRADE MARKS AND REGISTERED USERS 1. Subject to the provisions of section 49, a person other than the registered proprietor of a trade mark may be registered as a registered user thereof in respect of any or all of the goods or services in respect of which the trade mark is registered. 2. Where it is proposed that a person should be registered as a registered user of a trade mark, the registered proprietor and the proposed registered user shall jointly apply in writing to the Registrar in the prescribed manner (a) The agreement in writing or a duly authenticated copy (b) An affidavit made by the registered proprietor or by some person authoried to the satisfaction of the Registrar to act on his behalf SUBHAR SINHA, AMITY GLOBAL BUSINESS SCHOOL,INDORE
  • 17. RECTIFICATION AND CORRECTION OF THE REGISTER 1. Power to cancel or vary registration and to rectify the register. 2. Alteration of registered trade marks. SUBHAR SINHA, AMITY GLOBAL BUSINESS SCHOOL,INDORE
  • 18. CERTIFICATION TRADE MARK SECTION 2 (1) (E) THERE IS A SPECIES OF TRADE MARK CALLED AS CERTIFICATION TRADE MARK. ITS FUNCTION IS TO INDICATE THAT THE PROPRIETOR OF THE MARK HAS CERTIFIED THE GOODS BEARING THE MARK ASTO CERTAIN CHARACTERISTICS OF THE GOODS. E.G. GEOGRAPHICAL ORIGIN, INGREDIENTS AND SO ON SUCH AS ISI, AGMARK, FPO SUBHAR SINHA, AMITY GLOBAL BUSINESS SCHOOL,INDORE
  • 19. OFFENCES, PENALTIES AND PROCEDURE Falsifying and Falsely applying trademarks A. Without the assent of the proprietor of the trade mark makes that B. Trade mark or a deceptively similar mark falsifies any genuine trade mark, whether by alteration, addition,Effacement (2) A person shall be deemed to falsely apply to goods or services a trade mark who, without the assent of the proprietor of the trade mark (a) Applies such trade mark or a deceptively similar mark to goods or services or any package containing goods. (b) Uses any package bearing a mark which is identical with or deceptively similar to the trade mark of such proprietor, for the purpose of packing, filling or wrapping therein any goods other than the genuine goods of the proprietor of the trade mark. SUBHAR SINHA, AMITY GLOBAL BUSINESS SCHOOL,INDORE
  • 20. PENALTY FOR APPLYING FALSE TRADE MARKS TRADE DESCRIPTION Shall, unless he proves that he acted, without intent to defraud, be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees. SUBHAR SINHA, AMITY GLOBAL BUSINESS SCHOOL,INDORE
  • 21. SUBHAR SINHA, AMITY GLOBAL BUSINESS SCHOOL,INDORE
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