Trademark Law in india

Trademark can be referred to as a sign that distinguishes and provides individualization to the goods and services. Trademarks are distinguished based on distinctiveness, i.e., the sign must possess the quality of uniqueness and the mark must not be the same as the already registered mark. The existence of trademarks can be traced back to the ancient origin when the people engraved the marks themselves or used to acquire them from local craftsmen. The Indian craftsmen used to engrave their signatures before sending them to Iran ad simultaneously the people from China used to engrave their marks and then forwarded them for further process in the Mediterranean area. With the advent of industrialization and trade, the trademarks marked a remarkable role in industrialization and subsequently became an essential asset in the world of modernization and globalization.

Henceforth, the trademark has been provided protection under the Trademarks Act, 1999 and under the TRIPS Agreement. In India, trademarks have been provided protection under both the statutory and the common laws. The initial law that was framed by the legislators for providing protection to the fundamentals of trademarks was the Trade and Merchandise Act, of 1958 which further got replaced by the Trademark Act, 1958. The Trademark Act, of 1958 was a failure as it did not comply with the necessary essentials of trademark and was further replaced by the Trademarks Act of 1999, also read with the Trademarks Rules,2017 The act was introduced in compliance with the provisions of the TRIPS Agreement. The important provisions of the act can be summarised below:

i. Firstly, the goods and the services can be registered following the NICE classification which has been included in the fourth schedule of the Trademarks Rules, 2017.

ii. There has been an appointment of the Registrar who is responsible for the further registration process and other functions with respect to the trademarks. He is also accorded with the responsibility for the maintenance of a register, which would contain the particulars with respect to the registered trademark.

iii. Section 18 -Section 26 of the Trademarks Act, 1999 briefly addresses the procedure of registration and opposition of a trademark.

iv. If the trademark owners and proprietors observe that the mark has been deceptively used, then an act of infringement and passing off can be issued against the person infringing the mark under Section 29 of the Trademarks Act, 1999.

v. The proprietor of the already registered trademark has been accorded with the proprietary rights, thereby giving him the right to sue the person deceptively using the trademark causing public deceit and confusion for the same and can claim damages and injunctions for the infringement caused.

The TRIPS Agreement has provisions related to patents, copyrights, and other rights. Similarly, with respect to trademarks, Section II of Part II of the TRIPS Agreement i.e., Article 15 – Article 21. Furthermore, Article 15-20 comprehensively states the defining, framing and expanding the notion of a trademark that can be accorded protection and also provides proprietary rights to the owners of the trademark. Article 21 of the agreement states the licensing and the assignment of trademarks, and that compulsory licensing should not be permitted, but the owners would have the right for assigning the use of trademarks, whenever necessary.

Thus, it can be concluded by mentioning that the domain of intellectual property rights is not static, and the laws are amended with the changing needs in society. Similarly, the laws on trademarks have been amended for providing varied protection to the marks.