The statute law of trademarks in India till now was governed by the Trade and Merchandise Marks Act 1958. This Act has now been replaced by the Trade Marks Act, 1999. This part on Trademarks is based on the new Act of 1999.
The trade mark Rules, 2002 deals with the various proceedings required to implement the provisions of the Act.
A trademark is a word, phrase, symbol or design, or combination of words, phrases, symbols or designs is used in the course of trade which identifies and distinguishes the source of the goods or services of one enterprise from those of others.
A service mark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product: Normally, a mark for goods appears on the product or on its packaging, while a service mark appears in advertising for the services.
A trademark is different from a copyright or a patent or geographical indication. A copyright protects an original artistic or literary work; a patent protects an invention whereas a geographical indication is used to identify goods having special characteristics originating from a definite territory.
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 goods manufactured or otherwise dealt in by a particular person as distinguished from similar goods manufactured or dealt in by other persons.
The law of trade mark is based mainly on the concepts: distinctiveness similarity of marks and similarity of goods.
Section 2(1)(zb) of the 1999 Act prescribes that a trade mark must be a mark which 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 mark must be capable of being represented graphically.
It must be capable of distinguishing the goods or services of one person from those of others. It may include shape of goods, their packaging and combination of colors. It must be used or proposed to be used in relation to goods and services.
The use must be for the purpose of indicating a connection in the course of trade between the goods and services and some persons having the right as proprietor to use the mark.
The right to proprietorship of a trade mark may be acquired by registration under the Act or by use in relation to particular goods.
The right of proprietorship acquired by registration is a statutory fight which requires no actual user but only an intention to use the mark the other hand the right acquired by actual user in relation to particular or services, is a common law right which is attached to the good of the business concerned.
A registered trademark can be protected against unauthorized use by others by an action for infringement. This is a statutory remedy. An unregistered trademark can be protected against unauthorized use by others by an auction for passing off which is a common law remedy.