Not every mark is liable for registration as the trademark. For being registered, the trademark proposed for registration should be distinctive and does not have any familiarity with the competitors’ trademark. The products and services marketed under trademark reflect the same path or the source of origin of the respective products and services. Thus, tracing is made easy in the tough market competition. There may arise difficulties in the registration of the trademark, if the competitor is using a similar mark for the respective trade activities. In such case, the owner of the respective trademark can file for trademark opposition. In the process of trademark search and selection, the guidelines prescribed in the “Section 9” of the “Trade and Merchandise Marks Act, 1958”. During filing Trademark Opposition, it is also advisable to request for the search report to the Registrar of Trademarks. This will in return provide evidence of bona fide in the adoption of appropriate trademark. All this information is available with the leading Trademark Law Firms. In India, the services may vary from firm to firm, but all the consultancy is provided abiding the rules and regulations mentioned in the Trade and Merchandise Marks Act, 1958.
At the time of Trademark Search, if similar trademark found in use for the same type of products and services, it would rather be advised to discard the proposed mark and restart the entire registration process with a new mark. To sort the disputes and ensure registration of the trademark without waste of time and money, there are various Trademark Law Forms being implemented in India.
Hereunder, one can find the basic principles of the Trademark Law in the India. There are various sections of the Trade and Merchandise Marks Act, 1958, which are implemented for the Trademark Registration. The main purpose of the act is to serve protection to the trade activities and fraudulent activities in the market. Apart from the principles, the act also states the types of marks that are not liable to be registered according to the sections of the respective act.
Basic Principles of the Trade and Merchandise Marks Act, 1958
* Section 9 of the Trade and Merchandise Marks Act, 1958:
Since the registration gives the owner a kind of exclusive rights to the brand, which may require the use of words or symbols consist of the right of other operators for bona fide business or commercial purposes, certain restrictions a class of words or symbols, such as a monopoly can be granted. Moreover, descriptive words, names and place names are not at all considered ideal for the trademark.
* Section 34 of the Trade and Merchandise Marks Act, 1958:
The trademark registration should not prevent the fair use by any person on his behalf or to his place of business or use any bona fide description of the character or quality of goods.
* Section 33 of the Trade and Merchandise Marks Act, 1958:
Owner of the mark must be recorded by the use of higher acquired rights in accordance with the law. It will therefore need to protect for the user who gave a mark on all monopoly rights of the Charter.
* Section 11 and 12 of the Trade and Merchandise Marks Act, 1958:
There are obviously two interests are protected if the mark is submitted for registration. First, there is the interest of the public. A trademark cannot be registered if, tend to mislead the public about their use is at the origin of the products they buy. There are also the interests of other operators who have the right to object if the registration mark is calculated competing products that are delivered to the public, like other operators must be produced. Example, the character, the only and registered trademark or similar products should not seek to be registered.
* Section 12 (3) of the Trade and Merchandise Marks Act, 1958:
It may be that the honest trader to use the brand for a number of years, although the identical or similar trade mark is registered or the other. This is obviously caused difficulties for such suppliers, when deprived of the benefits of the registry. It is thus the registration of such signs, depending on suitable conditions.
* Section 46 of the Trade and Merchandise Marks Act, 1958:
Generally, the life of a brand depends on its use, as well as the pursuit of non-use can lead to its final death. It is therefore not granted equity or logical basis for the continuation of protection through registration if the mark is not used for a long enough periods. This principle is recognized in law, and provides for the removal of the mark from the register for reasons of non-use.
* Section 36-44 of the Trade and Merchandise Marks Act, 1958:
Brand is recognized as a form of property. The term “proprietor of a trademark or brand owner” is the definition of a brand used, and various other provisions of the Act. Therefore, it may be forwarded as is the case with other forms of property. Taking into account the characteristics of the property, the law has taken various limitations and conditions of sale or transfer of ownership of the trademark to impose, whether registered or not.
* Section 20 and 21 of the Trade and Merchandise Marks Act, 1958:
Recording in accordance with the Charter is not only a topic of interest to the applicant, the registration process, but it is a matter in which the public is interested. Therefore, it is necessary that each member of the public who wishes to oppose the registration should be allowed. Appropriate advertising applications and the opposition to it by an interested party.
There are various types of marks that are not considered ideal for the registration and being used for the trade activities. Below mentioned are some of the marks types as per the sections in the Trade and Merchandise Marks Act, 1958, brought into practice by various Trademark Law Firms.
* Section 11(a) Trade and Merchandise Marks Act, 1958: Any mark that may cause confusion or cheat the layman.
* Section 11(b) Trade and Merchandise Marks Act, 1958: Any term that opposes any law reinforced in the particular time frame.
* Section 11(c) Trade and Merchandise Marks Act, 1958: Any term of mark representing scandalous or absence matter
* Section 11(d) Trade and Merchandise Marks Act, 1958: Any mark or term likely to hurt the religious susceptibilities. This includes any class or section of the citizens of India.
* Section 11(e) Trade and Merchandise Marks Act, 1958: Any mark or term be disentitled to protection in a court of law.
* Section 12(1) Trade and Merchandise Marks Act, 1958: Any term or mark that is similar to an existing trademark registered for the same type of goods and services.
* Section 13 Trade and Merchandise Marks Act, 1958: Any term or mark that resembles the chemical name or chemical compound in respect of chemical substances.
* Any term or mark prohibited under the Emblems and Names Act.