A trademark (US) or trade mark (UK) is represented by the symbol ™ if it has not been registered and by the symbol ® if it has been registered. A trademark is basically a symbol which identifies the source or origin of a product or a service. It is commonly used in conjunction with terms such as ‘brand’ or ‘logo’ although it is not the same as either a brand or logo – conceptually, the terms ‘brand’ and ‘logo’ belong to the realm of advertising and marketing while a trade mark is essentially a legal concept.
The Trade Marks Act provides for the registration of different kinds of marks, speaks of what the requirements for a mark to be registrable are and allows for proceedings to be initiated in the case of the infringement of a trade mark.
The Trade Marks Act defines various different kinds of trade marks although it begins by defining just what it is that a mark comprises. The definition of a mark in Section 2(m) of the Act is not exhaustive. It merely says that a mark includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof.
The definition of a trade mark under Section (zb) is, however, exhaustive. It says that a ‘trade mark’ means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours; and:
(i) in relation to penalties under the Act Chapter XII (other than the penalty for falsely representing a trade mark as registered under Section 107), a registered trade mark or a mark used in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services, as the case may be, and some person having the right as proprietor to use the mark; and
(ii) in relation to other provisions of this Act, a mark used or proposed to be used in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services, as the case may be, and some person having the right, either as proprietor or by way of permitted user, to use the mark whether with or without any indication of the identity of that person, and includes a certification trade mark or collective mark.
Under Section 2(e), a ‘certification trade mark’ is a mark which is capable of distinguishing the goods or services in connection with which it is used in the course of trade which are certified by the proprietor of the mark in respect of origin, material, mode of manufacture of goods or performance of services, quality, accuracy or other characteristics from goods or services not so certified and registrable as such under Chapter IX in respect of those goods or services in the name, as proprietor of the certification trade mark, of that person.
While under Section 2(g), a ‘collective mark’ means a trade mark distinguishing the goods or services of members of an association of persons (not being a partnership within the meaning of the Indian Partnership Act, 1932) which is the proprietor of the mark from those of others.
‘Associated trade marks’ are defined by Section 2(c) to mean trade marks deemed to be, or required to be, registered as associated trade marks under this Act. Under Section 16(1), where a trade mark which is registered, or is the subject of an application for registration, in respect of any goods or services is identical with another trade mark which is registered, or is the subject of an application for registration, in the name of the same proprietor in respect of the same goods or description of goods or same services or description of services or so nearly resembles it as to be likely to deceive or cause confusion if used by a person other than the proprietor, the Registrar may, at any time, require that the trade marks shall be entered on the register as associated trade marks.
Section 2 (zg) says that a ‘well known trade mark’, in relation to any goods or services, means a mark which has become so to the substantial segment of the public which uses such goods or receives such services that the use of such mark in relation to other goods or services would be likely to be taken as indicating a connection in the course of trade or rendering of services between those goods or services and a person using the mark in relation to the first-mentioned goods or services.
Trade marks are primarily meant to protect consumers from being misled by unscrupulous business practises and, as such, their enforcement is a matter of public policy.
