Trademark Rights and its Protection in India

Trademark is an example of intellectual property. It could be a term, gadget, phrase, logo, or any mixture obtained by any organization or corporation to distinguish their commodity from the commodities of other firms. It is also referred to as the “Brand Name”. Any corporate organisation, individual, or legal body could hold a trademark. The Trade Marks Act of 1999, the Trade Marks Rules of 2002, and the Trade Marks (Amendment) Rules of 2017 govern trademark standards and procedures.

What is a Trademark?

A “trademark”, as per Section 2(1) (ZB) of the Trade Marks Act, 1999, would be a symbol capable of being demarcated diagrammatically and useful of distinguishing one institution’s goods or services from that of competitors and will include the shape of items or their packaging and colour mixes.

Registration of Trademarks

Individual who claims to be the owner of a trademark or claim to utilize it in the future might submit in writing to the competent registrar in the required way. The application must include the name of the products, the mark, and the services, the class of products and services in which it falls, the applicant’s name and address, and the period of use of the mark. In this context, a person could be an association of businesses, a partnership firm, a company, a trust, a state government, or the federal government.

In India, registration is done on a first-come, first-served basis. As a result, it is critical to apply for registration as soon as feasible. If there is no opposition from a third party, it normally takes 2-3 years to register a trademark. The Office of the Controller General of Patents, Trade Marks, Industrial Designs, and Geographical Indications handles trademark applications. Such institutions have branches in Mumbai, Kolkata, Ahmedabad, Delhi, and Chennai. The application must be completed in accordance with territorial jurisdiction. And, in accordance with Section 18 of the Trademarks Act of 1999.

The Implications of Registration

The registration of a trademark, if legal, grants the registered proprietor the exclusive right to use trademarks in relation to the products and services for which the trademark is registered, as well as the right to seek redress for trademark infringement.

Different types of Trademark Rights

The Right to Assign

Section 37 of the Act states that the registered agent must be able to transfer the trademark and issue effective receipts for any thought for such assignment. This right, however, is subject to the restrictions of the Act as well as any rights shown in the register to be unconditional in the other person.

Right to Register Correction

The registered man of affairs includes the right to file an application with the registrar requesting correction of the register pertaining to mistakes in the registered man of affairs’ particulars and other features of the registered trademark.

The freedom to change

The registered owner of a trademark should submit a request to the registrar for permission to use or display the trademark in any way that does not harm the integrity of the owner. The Registrar may decline the leave or give it on such conditions and with such restrictions as he may believe work.

Exclusive Usage Right

The registration of a trademark, if legal, grants the registered owner the right to use the trademark in relation to the items or services for which the trademark is registered.

Right to statutory redress in the event of an infringement

The registered owner of a trademark shall have legal action only if the brand is infringed upon in accordance with the Trade Marks Act, 1999. By filing a lawsuit against the accused infringement, the owner may get an injunction as well as damages or an account of profits.

Rights Available to Unregistered Trademarks

Unregistered symbols with prior usage might well be safeguarded under common law in India as a first-to-use country. Unregistered symbols have common law benefits under the Trade Marks Act of 1999.

Even if Section 27 of the Trade Marks Act of 1999 does not provide for action for infringement of unregistered insignia, it will still be protected by the common law offence of ‘passing off.’ Unauthorized use of an unregistered trademark is punishable under Section 27(2) of the Trade Marks Act of 1999. Passing off is a common-law offence that is commonly used to protect the goodwill and a name that is linked to unregistered insignia.

Passing off is based on the idea that an individual may not pass off their goods or services as those of another. To prevail in a passing-off case, the holder of an unregistered trademark must be able to prove that its unregistered trademark has enhanced value or repute of the product, services, or enterprise with which it is associated. The owner should also be able to demonstrate that there is a misleading likeness between its unregistered trademark and the trademark in question, which will undoubtedly confuse the general public.

Final words

The term “intellectual property” refers to the fact that the subject body is a product of the mind or intellect. It may be exchanged, acquired, donated, and reserved since it is the result of a productive and creative intellect. All of this is possible, but some concerns must be addressed. Trademarks are highly significant components of Intellectual Property, therefore trademark protection has become vital in the modern-day since every creator of a commodity or service will want his mark to be unique, eye-catching, and readily distinguished from others.

Finally, it is essential to register a trademark and understand the method for registering a trademark that preserves the corporation’s goodwill. Trademarks divulge exclusive rights that a person has over his or her goods and services. It lets the proprietors profit from their creations when they are professionally exploited. A party who owns the rights to a particular trademark may sue others for trademark infringement.