The Trade Marks Act, 1940, which was derived from the Trade Marks Act, 1938 of the United Kingdom, was the first Trademark law pertaining to trademarks (TM) in India. Subsequently, the TM provisions were incorporated into the Indian Penal Code, Criminal Procedure Code, and Sea Customs Act. The Trade and Merchandise Marks Act, 1958 replaced the Trade Marks Act, 1940 at a later date. The Trade Marks Act of 1999 repealed this Act over forty years later. This was necessary in order to abide by the TRIPS regulations. It is the law that now governs TMs that are registered.

Definition under Trademark Law

Trademark defined under Section 2 (zb) of the Trade Marks Act, 1999 as,

“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 colors.”

Meaning under Trademark Law

The symbol that represents your business is called a trademark. People can quickly determine the purpose of your business when they see your trademark, also known as your brand name. A trademark can be used as a corporate marketing strategy. A trademark serves as a symbol of the business dedication to upholding its integrity, reputation, and helping customers make judgments about what to buy.

In simple words, a trademark or (Trade Mark) is a distinctive symbol that can be used to distinguish the goods and services of one company from those of another. The term “Mark” can refer to a name, numeric, symbol, design, slogan, sign, or a combination of these. In essence, a trademark is anything that helps a typical customer recognize a brand.

Types of Trademark

Word Mark: consists of written words, letters, or digits.
Device mark: this consists of any label, sticker, logo, monogram, or other geometric shape that isn’t a word mark.
Color: When the uniqueness is asserted by a color scheme with or without a device.
Three-dimensional trademarks: these comprises of an item’s form or packaging.
Audio: consists of sound, musical notes with or without words.

What can you register as per the Trademark Law?

NAME	EXAMPLE
Product Name	Like IPod, Hi-liter, Band-Aid
Business Name	Like Bajaj, Tata, Maruti
Persons Name	Like Sachin Tendulkar, Shah Rukh Khan
Abbreviations	Like BMW, LG, HP
Logo/Symbol	Like Apple, Nike, Adidas
Tagline	Like Nike’s ‘Just Do It’, McDonald’s ‘I’m Lovin’ It’
Color Mark	Like Cadbury has trademark of purple color
Sound Mark	Like the Corporate jingle music of the ICICI bank

Eligibility Criteria

For goods/services to be legally classified as Trademark, they need to pass the following conditions under the trademark law:

Distinctiveness: The products and services that need to be protected need to be sufficiently different from one another to qualify as trademarks. In the target market, it must be possible to pinpoint the source of products or services.
Descriptiveness: The goods or services in question should not be described by the trademark. It is unlikely that descriptive marks will be shielded by trademark law. Descriptive terms, however, may be registered if they take on a “secondary meaning.” For example, the international corporation that manufactures electronic devices under the name “Apple” is based in the United States.
Similarity to previous marks: The mark need to be distinct and not have any resemblance to previously issued marks.

Who can apply for a Trademark?

An application for trademark registration may be submitted by any owner of the trademark. Two or more applicants may file for the mark jointly, although supporting documentation is required in that case. An association or group may apply for a collective mark, which its members may use. The ‘Reliance’ emblem is the best illustration of this mark since it denotes all items that are a part of the company.

Symbol Designation under Trademarks Law

TM-This symbol indicates that the trademark is not registered. The company’s products may be promoted using this mark.
SM-Denotes the lack of a trademark registration. It is possible to promote brand services using this mark.
R-Signifies a service or trademark that is registered. The legitimate owner of the trademark is the applicant for registration.

Check validity under the Trademark Law

A trademark that is registered in India is good for ten years. The time frame may be extended in perpetuity, every ten years. One the lapse of 10 years, the renewal request must be submitted in the form TM-R’ within a year of the mark’s last registration expiring, under the Indian Trademarks Act.

Conclusion

If summed up, Trademark is a symbol that can be used to distinguish your goods and services from other goods and services in the market. It is a tool that helps to make your product safe and secure. In case of any dispute pertaining to trademark mis-usage or ill usage, we can move directly to the court (only if the trademark is registered).

FAQs

What are the basic facts about trademark?

A trademark typically protects brand names and logos used on goods and services.

What are the fundamentals of trademark?

Understanding the many forms of trademarks, their symbols, the registration procedure, and their significance for consumer awareness and brand protection are all part of the fundamentals of trademarks.

Is the trademark symbol TM or R?

TM can be used for any trademark whereas R can only be used by federally registered trademarks.

Can I put TM on my logo?

You can put the TM next to your brand at any time without seeking permission from anyone.

What is trademark and copyright?

A brand, name, logo, shape, or slogan used to market goods and services is protected by a trademark. Original creative expressions, including literary, dramatic, and artistic works, are protected under copyright laws.

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Understanding the basics of Trademark Law

Himanshu Bansal

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