This article is written by AISHWARYA SAHEBRAO SURADKAR during her internship with Le Droit India.
KEYWORDS
- Trademark
- Symbol
- Counterfeit
- Ownership
- Infringement
- Intellectual Property
INTRODUCTION
Trademark is a type of intellectual property right consisting of recognizable design, sign, expression that identities product or service from a particular source and differentiates it from other source. A trademark owner can be an individual person, business organization, or any legal entity. A trademark may be located on a package, a label, a voucher, or on the product itself. The owner of trademark may pursue a legal suit for the infringement if any of the rights of owner is violented.
A trademark is a special symbol or combination of symbols that is used to identify a company or its goods and services. As long as the proper documentation and fees are submitted and the symbol or set of words is utilized, it cannot be used indefinitely by any other organization or individual.Trademarks are perpetual in nature but the registration is granted for 10 years it has to be renew after every 10 years unlike patents, which are awarded for a 20-year period. It gives protection against copycats,counterfeiters businesses must submit an application for a trademark and obtain ownership confirmation. One of the main benefits of using symbols and phrases is that we are able to quickly identify with businesses and their brands and also infringement which has happened. A customer’s fast awareness of a well-known brand or phrase can lead to preference and, eventually lead to increase in sales.
WHAT CAN YOU REGISTER AS TRADEMARK
Trademark protects Brand names, logos, phrases, slogans, sounds, fragrances, colors, and any other distinctive symbol can be considered trademarks. These trademarks should distinguish from others goods and services. This keeps your business identity and guards against abuse.
WHY IS TRADEMARK REGISTRATION IMPORTANT?
In India, registering your trademark is important for securing your brand and preventing counterfeits. It increases the value of your brand, allots you with legal power and right associated with it, and assures consumers about the standard of your goods and services. It helps in brand identity and client trust structure. Since trademark enrollment gives businesses significant means and protects their intellectual property, it’s legally needed to register it under owners name.
1) Legal protection:
By registering trademark, it will legally guard it against unauthorized use, copying, or infringement. By pursuing legal action against trademark infringers, it grants exclusive rights to its owner.
2) Recognition and identity of a brand
By registering a trademark, a company can create its identity and differentiate itself from competition. Additionally, it will build brand awareness, which eventually boosts a company’s worth and reputation in the marketplace.
3) Act as businesses asset:
A trademark develops into a significant commercial asset. It helps the company’s goodwill and reputation, which attracts investors, purchasers, and business partners.
4) Market advantage and exclusive rights: Registering a trademark grants you the only right to use it in a certain class of products and services. It allows for the use of similar marks, which may deceive customers.
5) Consumer loyalty and trust:
Using registered trademarks in goods and services increases consumer loyalty and trust. Since genuine and special marks are irrevocable once registered.
6) preventing brand dilution and counterfeiting:
It serves as a means of initiating legal action against products that are counterfeited or trademarks that are used without authorization. It help in safeguarding the reputation of a brand and avoiding dilution or harm brought on by illegal use of the mark.
THIS SYMBOLS SHOWS THAT A TRADEMARK HAVE BEEN CLAIMED BY THE COMPANIES.
• ™- Using this trademark symbol for a logo or expression helps challengers and rivals know that you owns the trademark, symbol or expression, even if you haven’t officially filed an application for it.
• ®- This symbol indicates a registered trademark, such trademarks are officially granted by the Trademark registry office.
• ℠- Businesses or company that offers only services related rather than goods may choose to use this service mark logo, but almost business choose to use the ™ rather because of its simplicity of use.
VALUE OF TRADEMARKS
Trademark Value Brands are like any other property can be easily purchased and sold. Additionally, trademarks may be licensed to other businesses for a certain period of time or according to specific requirements that occurs, which may lead to crossover brands. Consider the connection LEGO has with specific film series. The private business grants licenses to numerous renowned sub-brands, including DC Comics and Star Wars, to create LEGO sets with characters from those properties.
WHICH MARKS ARE NOT REGISTERED
• Marks which likely lead to confusion or misrepresentation.
• A trademark which is contrary to current legal system of India would be illegal to use.
• A trademark that includes or contains obscene or controversial content or matter.
• A trademark that includes or contains any content that might harm any class or section religious sentiments or feelings.
• A trademark that is not be entitled to legal protection.
• A trademark that is same or identical to one that has formally been registered for the same goods or similar goods
• A term that are in connection with chemical substances, is the known name for any one chemical emulsion or substance.
• A name of a estate, linage, tribe, or religious beliefs in India; a geographical name; a surname; a personal name; or any common form thereof.
STEPS TO BE TAKEN TO MAINTAIN TRADEMARK
●Choose an strong trademark:
Choosing a powerful trademark is essential to developing a successful brand. Select an unique and recognizable mark for your brand. Avoid use of general terms. Having a unique trademark will help you separate yourself from the competition and leave a long lasting impact on clients and competitors.
●Register the trademark you enjoy:
By registering your trademark with the relevant government body, you can avoid legal trouble and stop unauthorized use of your mark.
●Keep track on your trademark enrollment : To make sure that no identical marks are being registered, a trademark monitoring service can keep track of trademark operations that are submitted, promoted, and approved.The service has the capability to notify the brand when a possible trouble is discovered.
● Continue to register your civil trademark: It’s necessary for you to periodically submit paperwork to the USPTO in order to keep your civil trademark enrollment active.Furthermore, you have to make sure that everyone differently exercising your trademark does the same.
● Platoon up with a trademark counsel:
You can cover your trademark and remove contraventions when you come across them with the backing of a counsel or legal company.They can help you in making sure you do n’t infringe on any formerly- registered trademarks.
●Consider into account registering internationally:
Carrying exclusive rights to vend your goods in foreign commerce through trademark enrollment might discourage counterfeiters.Your brand’s value and character in global commerce can be increased with the aid of transnational trademark enrollment .
PROCESS OF REGISTERING TRADEMARK IN INDIA
1) Search and operation
Trademarks previous to filing a trademark operation, a thorough hunt must be done to determine the mark’s originality. operation can be filed in TM- A formerly satisfied.
2) Analysis and dispersion
If and when the trademark register quests and reviews the operation to insure it complies with legal conditions. The mark is published in the Indian trademark journal for a length of time to allow for opposition if no expostulations are submitted.
3) Procedures for opposition
If a third party, believing that his trademark would affect them or their own trademark, objects to the trademark enrollment being granted. A third party will notify the monitor, who’ll also further the opposition procedures if the monitor determines that the opposition is licit.
4) The approval and Documentation
The trademark instrument is issued in the event that there’s no objection. The instrument is used to demonstrate who owns the marks and their exclusive rights.
5) Restoration and safeguarding
A trademark is registered for ten times from the form date. Loss of rights under the law would affect from the renewal failing. As soon as the trademark was registered, the proprietor gained the legal right to defend his brand identity. In the case of violation, the proprietor may file a action to stop unauthorized use.
CASE LAW
COCA COLA VS BISLERI
Who will accept the “MAAZA”?
It is the well-known case involving Coca-Cola and Bisleri and the trademark Maaza. In that instance, Bisleri granted Coca-Cola permission to sell and export goods into and out of India under the Maaza trademark, and shortly after, Bisleri filed a trademark application in Turkey. It was decided that Coca-Cola had full ownership and can enjoy the trademark and Bisleri was not permitted to use it inside or outside of India.
WHATMAN INTERNATIONAL LTD V. P MEHTA AND OTHERS
The well-known Indian case in which the defendant, who took advantage of Whatman’s goodwill and damaged several of the plaintiff’s intellectual property rights during the previous 25 years, paid Whatman an enormous sum of 3.85 crores. The counterfeit filter sheets, which were identical replicas of the plaintiff’s filter paper and were being sold by the defendant under a number of different trademarks, were permanently halted in this highly publicized case, which revealed the actual worth of the trademark.
N.R. DONGRE V. WHIRLPOOL CORPORATION
It was decided that because WHIRLPOOL has long been exclusively associated with WHIRLPOOL CORPORATION, its reputation extends to India, and as a result, even registered users in that country are not permitted to use the aforementioned trademark for the same or comparable goods.
ICC DEVELOPMENT (INTERNATIONAL) LTD V ARVEE ENTERPRISES
The World Cup is a generic term, the Plaintiff’s logo and mascot, Dazzler, has not been used by the Defendant, and the Event is not protected by any domestic or international law. Accordingly, the advertising campaign that is selling tickets for the Event cannot be deemed illegal.
STARBUCKS COFFEE V SARDARBUKSH COFFEE
Starbucks faced Indian infringers who used Sardar instead of Star, deceptively misleading people. The court allowed Starbucks to use modified Sardar Baksh and allowed future lawsuits against those using Baksh.
REMEDIES AND PENALTIES AGAINST TRADEMARK INFRINGEMENT
Civil Liabilities: Orders
Temporary Injunction:
A court can order that prevents the trademark infringements from using the mark until the proceedings is resolved.
Permanent Injunction:
It is a long-term injunction which will stops the trademark infringement victim from exploiting brand.
Damages: Restitution for monetary losses or harm to one’s reputation brought on by the violation.
This may consist of:
Actual Damages: Payment for actual cause of damages, such as missed revenue or earnings. Additional Damages: Payment for non-tangible losses which may affect brand identity ,reputation or goodwill.
Account of Profits: A court can give order to the the violator to reveal and give up any money they have made from using your trademark illegally.
Criminal Remedies:
Imprisonment:
The infringer can be jailed for at least 6 months, which is extendable to 3 years.
Fine:
The infringer can be fined for a minimum of Rs. 50,000 and up to Rs. 2,00,000.
CONCLUSION
In the dynamic and largely competitive world of startups, it’s critical to guard your brand identity. guarding your startup’s identity, creating brand exclusivity, and developing a solid character all depend heavily on trademarks. The current hot topic is trademark infringement, which has drawn attention from the legal departments of tech, media, sports, marketing, and intellectual property. The trademark legal framework must be based on both domestic and international law, and it must comply with transnational laws. Judgements from other nations that are cited in trademark cases will serve as a reference for creating a new legal framework in India.
Invest in the protection of your trademark, actively monitor its usage, and take proactive measures to enforce your rights. By doing so, you can confidently build a recognizable brand that resonates with your target audience and sets your startup apart from the competition.
REFERENCE
1. COCA COLA VS BISLERI
2. WHATMAN INTERNATIONAL LTD V. P MEHTA AND OTHERS
3.ICC DEVELOPMENT (INTERNATIONAL) LTD V ARVEE ENTERPRISES
4.N.R. DONGRE V. WHIRLPOOL CORPORATION
5.STARBUCKS COFFEE V SARDARBUKSH COFFEE
