Trademark Law India1

By Kaviraj Singh
TRADE MARK LAW INDIA

Trade Mark" means a registered trade mark or a mark used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right as proprietor to use the mark ; and a mark used or proposed to be used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right, either as proprietor or as registered user, to use the mark whether with or without any indication of the identity of that person, and includes a certification trade mark.(See Section 2(v) of the Trade and Merchandise Marks Act, 1958)

In other words, a trade mark is a visual symbol in the form of a word, a device, or a label applied to articles of commerce with a view to indicate to the purchasing public that they are the goods manufactured or otherwise dealt in by a particular person as distinguished from similar goods manufactured or dealt in by other persons. A person who sells his goods under a particular trade mark acquires a sort of limited exclusive right to use of the mark in relation to those goods. Such a right acquired by use is recognized as a form of property in the trade mark, and protected under common law. A person can also acquire a similar right over a trade mark, not so far used but only proposed to be used, by registering it under the Trade and Merchandise Marks Act, 1958. The law of trade marks is based mainly on two concepts ; distinctiveness and deceptive similarity.

Function of Trade Mark

The function of a trade mark is to give an indication to the purchaser or possible purchaser as to the manufacture or quality of the goods, to give an indication to his eye of the trade source from which the goods come, or the trade hands through which they pass on their way to the market. It tells the person who is about to buy that what is presented to him is either what he has known before under the similar name as coming from a source with which he is acquainted, or that it is what he has heard of before as coming from that similar source. It gives the purchaser a satisfactory assurance of the mark and quality of the article he is buying, the particular quality being not discernible by the eye. It is on the faith of the mark being genuine and representing a quality equal to that which he has previously found a mark may be used to indicate not only that the goods are of a particular maker but are goods of that maker of a particular kind or quality. Thus a trader may indicate his best quality by one trade mark, his second quality by another trade mark and so on.

Under modern business conditions a trade mark performs four functions: (1) it identifies the product and its origin, (2) it guarantees its unchanged quality, (3) it advertises the product, and (4) it creates an image for the product.

Object of Protecting Trade Mark

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