You Can Be Proscribed From Registring Trademark’ – Get To Know When And How

KEY TAKEAWAYS

• Understanding the concept of trademark
• Law governing trademarks in India 
• Grounds of refusal to registration of a trademark 

INTRODUCTION

“Which is that biscuit I took last time?”, “All chocolates looks same, which will taste best?”, “ Mom asked to bring blue packet of detergent, but this shop has all blue packets which one to pick?

These were some frequent questions whenever my visited a shop to buy stuffs. Pretty common, we all face confusion to determine what product to choose among the variety of products. However, we gradually become able to pick the desired stuff without getting confuse about which was the last one bought. This familiarity comes from the distinct packaging, logo etc of the products. But there are goods which have great similarity. In such situation, question arises that how do a particular good or service retain or hold their individuality. The answer to this through trademark.

In this article, we will be discussing about the trademark and its related laws.

MEANING OF TRADEMARK

A trademark is a recognition which protects brand names and logos of goods and services. It  distinguishes goods and services from each other and maintain their individuality. It is s type of intellectual property. Trademark protects reputation of goods and services from their counterfeits. Although registration of a trademark is not mandatory, but the ones registered definitely get legally protected from any damage to their identity. Trademarks are segregated into 45 categories. Each deals with different  set of goods and services. 

For instance, A opened a dairy and sells dairy products with a packaging on which image of a blue cow and calf is printed. Now if he registers his logo and design as trademark, he gets legal protection from anyone and everyone from copying same logo and design as that of him.

LAWS GOVERNING TRADEMARK 

In India, the law governing trademarks is The Trademarks Act,1999. This act has undergone significant changes since then. This act abolished The Trademarks Act, 1940 was the first act providing legal machinery for registration of Trademarks in India. Under this act, there are seven types of trademarks.

The Trademarks Act,1999 under Section 2(1)(m) states “mark” comprises a device, brand, heading, label, ticket, name, signature, word, letter, numerical, form of products, packaging, or combinations of colours or any combination thereof. Similarly, Section 2(1)(zb) defines “trade mark”. It can be understood as a mark that that has graphical representation and has specific qualities. The purpose is to enable an ordinary person to recognise and differentiate between goods or services. As time passes, trademark becomes a sign of quality and reputation. It represents value or goodwill of the goods or services.

GROUNDS OF REFUSAL TO REGISTRATION 

Registration of Trademarks is an essential step which protects the rights of the holder and provides legal protection. Under Section 9 of the Trademarks Act, 1999 lays down absolute grounds under which registration will be refused. Any registration falling under any of the given grounds cannot be registered. These grounds are:

• No distinguishing features- If the trademark lacks distinct features which make it recognizable from other goods and services, then it cannot be registered.
• Trade Marks that consist only of markings or indications used in commerce to designate the kind, quality, amount, intended purpose, values, or geographical origin of products or services delivered.
• Trade Marks that only comprise markings or indications that have become usual in the present language or established trade practices.
• Trade Marks that deceive or confuse the public.
• Trade Marks that contain anything likely to offend the religious sensibilities of any class or section of Indian people.
• Trade Marks containing or including scandalous or indecent material.
• If the trade mark’s use is forbidden under the Emblems and Names (Prevention of Improper Use) Act of 1950.
• Marks are derived from the form of the items themselves and are used as trade marks.
• Trade Marks consist of markings on items whose shapes are required to achieve a technological outcome.
• Trade Marks are made up of symbols resembling the form that provides products with their significant value.

In case of Mohm. Iqbal vs Mohm. Wasim (2001), two        labels of ‘bidis’ were found to be misleadingly similar under Section 9 of The Trademarks Act, 1999. Court held that since ‘bidis’ are commonly used among the poor and illiterate or semi-literate people, they cannot be expected to comprehend and compare the two labels. It will be difficult for them to distinguish between two similar labels. 

Under Section 11 of this act, there are relative grounds for refusal to registration. If there is any chance of resemblance of products or services with already one existing then registration cannot be done. 

CONCLUSION 

In recent years, emphasis has been laid down on importance of Intellectual Property Rights. As per WIPO’s intellectual property statistics for 2021, China has 5272, highest number of international trademarks. 

There has lot to be done for Intellectual Property Rights in India. Infact, India slipped to 43rd rank in 2022 from 40th Rank in 2021 as per the US Chamber of Commerce’s International Intellectual Property Rights. One of the striking feature of developed nations is that they have lot of registries under IPR. 

With increasing recognition in the world economy, India has lot of scope to improve and innovate. In recent years, several steps are taken to improve and enhance the domain of intellectual property rights in India. Increase in number of registrations under IPR is a factor of development and growth. Government role herein is an important one both as a regulator and motivator. The youth must be welcomed with their innovations, strategies, ideas and many more. However it is equally important that the government must provide for a smooth legal process which could help people to register under IPR with ease. Most of the times it the tedious task of process which makes it difficult for people to make registrations.