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Introduction

 

 

 

The basic point to be understood in the study of the principles relating to trademarks is that trademark is used for the function it is intended to serve, which is to indicate to the public the source or origin of the goods or services to which a particular trademark relates, as distinguished from identical or similar goods or services of another. Excepting in small village fairs, it is impracticable for a supplier of goods and service to communicate to the public that they are offered by him. Where goods and services are supplied across countries to unknown prospective buyers, this work is done by trademarks which identify to the public the suppliers. Over a period of time, the buyers of goods and services bearing a trademark tend to identify the goods and services bearing that trademark to be originating from a particular source and associate it with a particular quality. As this goodwill is industrial property and once recognized by registration of the trademark, gives the registered proprietor an exclusive right to use that trademark as prescribed under the law relating to trademark, it aids in the competition relating to the supply of goods and service.

The law governing trademark in India is the Trademarks Act, 1999 which repealed the Trade and Merchandise Mark, 1958. The process if enacting a new act, covered provisions for registration of service marks, collective marks, amendment to the definition of a trademark, amplification of factors to be considered for defining a well-known mark, increasing the term of a registered mark from seven years to ten years, establishment of an Intellectual Property Appellate Board for faster disposal of appeals from the orders of the Registrar of Trademarks, etc., the power for ordering rectification of the Register lying with the High Courts, dropping the provisions for two separate registers in Part A and Part B by the Registrar of Trademarks, with a different legal rights and providing for one single register with simplified procedure and with equal rights, prohibiting the use of someone else’s trademark as corporate names or business concern, allowing a single application for registration of a trademark in more than one class. The 1999 act was enacted on December 30, 1999, but came into force on September 15, 2003.

The revision in the trademark law of the country was necessitated by a number of factors, the most important being the need to comply with the provisions of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), by India on its becoming a member of WTO in 1995. The Paris Convention for the Protection of Industrial Property on March 20, 1883, last amended on October 2, 1979 is the oldest convention relating to the protection of patents, utility models, industrial designs, trademarks, service marks, trade names, indications of source or appellations of origin, and the repression of unfair competition. India is a signatory to the Paris Convention. Articles 15 to 21 of section 2 of TRIPS state the obligations of members of WTO indicating the scope of the legislation relating to trademarks that they may establish in their own countries. The 1999 Act will have to be studied with reference to the relevant conventions on trademarks and TRIPS.

 

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