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TRADEMARKS
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.)
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TRADEMARKS Trademarks must be clear and distinct from each other Trademarks may be in form of a letter, numeral, whole sentence, picture, combination of words and devices, label etc. Trademark may also be three-dimensional (e.g. neck of bottle)
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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.
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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.
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SERVICE MARKS 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.
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TM Act, 1999 was passed with objectives i) Provision for filing a single application for registration in more than one class; j) Increasing the period of registration and renewal from 7 to 10 years;
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STATUTORY DEFINITIONS
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. Example M written in a particular style with yellow colour for MacDonalds; 555/777 numerical used for detergent soaps; signature used as a mark for alcohol etc.
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STATUTORY DEFINITIONS TRADE MARK: Section 2 (1) (zb) Trade mark is defined as a mark capable of being represented graphically and that is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packing and other combination of colours. E.g. Colgate, Bata, Pantene etc.
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STATUTORY DEFINITIONS
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.
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STATUTORY DEFINITIONS
WELL KNOWN TRADE MARK: Section 2(1) (zg) Well known trade mark in relation to any goods or services, means a mark which has become so to the substantial segment of the public which uses such goods or receives such services that the use of such mark in relation to other goods or services would be likely to be taken as indicating a connection in the course of trade or rendering of services between those goods or services and a person using the mark in relation to the firstmentioned goods or services. Example: Coco Cola, Frooti, Bata.
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STATUTORY DEFINITIONS
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.
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STATUTORY DEFINITIONS
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 as to certain characteristics of the goods. e.g. Geographical origin, ingredients and so on such as ISI, AGMARK, FPO
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STATUTORY DEFINITIONS
PROPERTY MARKS Section 479 of Indian Penal Code, 1860 provides that A mark used for denoting that moveable property belongs to a particular person is called a property mark. The distinction between trade mark and property mark is not recognized in English Law.
However in India, the distinction between a trade mark and a property mark is as follows:
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STATUTORY DEFINITIONS
Trade Mark
Property Mark
It denotes manufacture It denotes the or quality of the goods to ownership of them which it is attached
It concerns the goods themselves It concerns the proprietor of the goods
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ESSENTIAL FEATURES OF TM
A Trade mark should have the following essential elements: 1. A Trademark should have Distinctive Character (Distinctiveness of the Trademark) A trade mark would be considered a good trade mark when it is distinctive.
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ESSENTIAL FEATURES OF TM
Features of Distinctiveness Distinctiveness may be class dependent. What is distinctive in relation to one class of goods may not be so in relation to another class of goods. The TM may be united wholly to one or more specified colours and this colour combination may become the distinctive character of the particular mark.
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ESSENTIAL FEATURES OF TM
Distinctiveness may be inherent or acquired. Inherent distinctiveness means that the mark or get up is distinct in itself from everything else and no one can justifiably claim the right to use it. E.g. RIN, ZEN. Acquired distinctiveness means Distinctiveness through use. E.g. the trade marks Yashica, Hawkins, Surf and Lux have acquired distinctiveness through use as also they are distinctive due to the inherent quality of why being invented words.
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ESSENTIAL FEATURES OF TM
2. Trademark should preferably be an invented word. The best trade marks are invented words. E.g. ZEN ( a car) , DIO (non-geared scooter).
3. Trademark, if it is a word, or name, then it should be easy to pronounce and remember. E.g. Lux for soap, Maruti Zen for car, Mercedes for cars, Levis for jeans, Reynolds for pens, Parker for pens etc.
4. In case of a device mark, the device should be capable of being described by a single work. E.g. Camel for Camel Ink, Kingfisher bird for Kingfisher Beer. 5. Trade mark should be easy to spell correctly and write legibly.
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ESSENTIAL FEATURES OF TM
6. It should not be descriptive but may be suggestive of the quality of goods. For example, a mark A-I would generally suggest superior quality. Avon (A-1) cycles for instance. 7. It should be short. E.g. Flex, Bru, Rin. 8. It should appeal to the eye as well as ear. 9. It should satisfy the requirements of registration. 10. It should not belong to the class of marks prohibited for registration. E.g. Mark prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950
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THANK YOU
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