Trademark

A trademark is a mark used in relation to goods for the purpose of indicating a connection between the goods and some person having the right as proprietor to use the mark.

It is a visual symbol in the form of a word, device or a label applied to articles of commerce with a view to indicate to the purchasing public that they are goods manufactured or otherwise dealt in by a particular person or a particular organization as distinguished from similar goods manufactured or dealt in by others.

During the British regime in India

During the British regime in India the big merchants and businessmen who had established their mark in the market in respect of certain goods under the particular brand name, style or design felt they should continue to be sold or traded under the same brand name, style or design and no other person shall be allowed to adopt that brand name, style or design.

The Government then enacted the Indian Merchandise Marks Act, 1889 and with development and changes, on 25th November 1958 The Trade And Merchandise Marks Act came into force.

A trademark serves the purpose of identifying the source or the origin of goods. Trademark performs the following four functions.

• It identifies the product and it’s origin.
• It proposes to guarantee its quality.
• Advertises the product. The trademark represents the product.
  • Creates an image of the product in the minds of the public particularly the consumers or the prospective consumers of such goods.

• The use of which would be likely to deceive or cause confusion.
• A mark the use of which would be contrary to any law for the time being in force
• It comprising or containing scandalous or obscene matter
• A mark comprising or containing any matter likely to hurt the religious susceptibilities of any class or section
• Mark which would be disentitled to protection in court of law
• A mark which is identical with or deceptively similar to a trademark already registered in respect of the same goods or goods of the same description
• A word which is the accepted name of any single chemical name or chemical compound in respect of chemical substances.
• A geographical name or a surname or a personal name or any common abbreviation thereof or the name of a sect, caste or tribe in India.
  • Besides others

• The taking of any essential feature of the mark or taking the whole of the mark a few additions and alterations would constitute infringement.
• The infringing mark must be used in the course of trade, that is, in a regular trade wherein the proprietor of the mark is engaged.
• Use of the infringing mark must be printed or usual representation of the mark in advertisements, Invoices or bills. Any oral use of the trademark is not infringement.
  • Any or all of the above acts would constitute infringement

The proprietor of a trademark has a right to file a suit for infringement of his right and obtain:

• Injunction- an injunction restrains the defendant from using the offending mark pending the trial of the suit or until further orders.
• Damages in assessing the damages the important question is what is the loss sustained by the plaintiff. The loss must be the natural and direct consequence of the defendants acts. The object of damages is to compensate for loss or injury.
  • Accounts of profits. Where a plaintiff claims the profits made by the unauthorized use of his trademark, it is important to ascertain to what extent he trademark was used, in order to determine what proportion of the net profits realized by the infringer was attributable to its use.