GRAPHICAL REPRESENTATION AND THE TRADE MARKS ACT,1999
Author: Akshat Dahate, III year of B.A.,LL.B from ILS Law College, Pune.
This a short blog pointing main provisions with certain understanding to Trade Marks Act, 1999 and basic to Graphical representation for views understanding. And the predominant focus of this article will be on Indian law.
LET’S GET CERTAIN WITH TRADEMARK
The term trademark is rooted with intellectual property rights (IPR) including compounds as legal rights which result from intellectual activities. Trademarks certainly hold commercial value when a right is recognized by law.
Trademark in the sense of a holding of a distinctive sign and intellectual development which is used for identification of goods and services provided. The objective of trademark law is to avoid discrimination and to generate public benefits. Trademarks are mainly a combination of words, letters, and numerals. The protection of the trademark extends to slogans, colour marks, product shape and sound marks. Some examples of trademarks will be Apple, McDonald’s, IBM, Mercedes.
A trademark gives exclusive right to the owner of the mark and to authorize others to use it in return for some consideration. The usage and authority holder is the owner of the trademark falling under law, therein it is enforceable by law. Any misusage or holding of a trademark without authorization by the owner is illegal in nature.
Registration of Trademark
The conditions required to obtain a trademark are invested under chapter 2 of The Trade Marks Act, 1999. Under section 3 of the act, it’s propagated that the Central Government by notification in the Official Gazette, appoints a person to be known as the Controller-General of Patents, Designs and Trade Marks, who shall be the Registrar of Trade Marks for the purposes of this Act. And the Registrar will give directions for registration.
Under Section 6 of the Act, discussed the maintenance of records and claims will be in the hands of Registrar.
The register shall be kept under the control and management of the Registrar. The copy of the register and other documents should be kept in the other horizontal branch also. The Register of Trade Marks, both Part A and Part B, existing at the commencement of this Act, shall be incorporated in and form part of the register under this Act.
Following the procedure, chapter 3 of the particular act states the ‘PROCEDURE FOR AND DURATION OF REGISTRATION’. The chapter carries a relevant cut in the process of registration of a trademark and connects us with the application of registration and opposition to registration. Accomplishment of the conditions and procedure in consideration with the application has not been opposed, and the time for the notice of opposition has expired.
The application has been opposed and the opposition has been decided in favour of the applicant, the Registrar shall, unless the Central Government otherwise directs, register the said trade mark and the trade mark when registered shall be registered as of the date of the making of the said application and that date shall, subject to the provisions of section 154, be deemed to be the date of registration. After this process, the Registrar shall issue to the applicant a certificate of registration.
The completion of registrations gets effects of registration, application and enforcement of trademark in action. The exclusive rights are conferred and infringement of registration comes to picture. The effects of trademark including the Trade Marks Act, 1999 in India are deeply rooted with the miscellaneous activities pointing infringement of registered, misuse or fraudulent use of marks including unregistered trademarks.
To prevent this activities and to safeguard owners' interest, the act emerged replacing the previous Act (trademark and merchandise act 1958). The history is a long chain, but the emergence of the Trade Marks Act, 1999 absorbed the concept of ‘Marks’ and confined the law in a well-to-do manner. The act associate us with distinctiveness of marks and a Graphical representation of marks.
The profound definitions and interpretation are stated under section 2 of this particular act:
"Trade mark" shall include reference to "collective mark" or "certification trade mark".
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 the shape of goods, their packaging and the combination of colours.
"Mark" includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or a combination of colours or any combination thereof.
"Associated trade marks" means trade marks deemed to be, or required to be, registered as associated trade marks under this Act.
"certification trade mark" means a mark capable of distinguishing the goods or services in connection with which it is used in the course of trade which are certified by the proprietor of the mark in respect of origin, material, mode of manufacture of goods or performance of services, quality, accuracy or other characteristics from goods or services not so certified and registrable as such under Chapter IX in respect of those goods or services in the name, as proprietor of the certification trade mark, of that person.
These above provisions provides legal explanation from the side of law. As collectively portable, trademarks carry a prominent space in our country as large. A mark is capable of being represented graphically deriving legal importance and showcasing diversification. The concept to note is that to get the integrity of a trademark one should be registered. Graphical representation has posed a significant challenge to registrations, as many of these marks do not satisfy the criteria that have been previously discussed.
This formulated concept is still developing in certain parts of India. In India, the scope of vitalmente of Graphical representation and safeguarding non-conventional marks is progressing with certain problems in hands. The non-conventional marks lead it’s types as ODOUR MARK, SOUND MARK, COLOUR MARK, SCENT TRADEMARK which are controversial trademarks and hard to barrier in the registering process. The process for registration of non-conventional marks is a bit intermittent, and the amount of registration of non-conventional marks is low, providing with some non-conventional marks balanced in India Yahoo!, Zippo lighter and Allianz Aktiengesellschaft.
This compound overview on the Trade Marks Act, 1999 and formulation of a trademark in sense. The emerging key of Graphical representation is lengthening with Shield Mark Doctrine with respect to graphical representation of sound marks, but recently the term has developed commercial value and gained some significance in the recent times.
Q. What’s the certain term of a registered trademark?
A. The answer will be 10 years of protection and please note that the renewed time to be made because to obtain an unlimited period.
Q. The specific amount needs to be needed to achieve a certificate?
A. The amount or fee to obtain a legal certificate will be 500/- under form no. 46.
Q. Is it possible to register a 3D mark?
A. Yes, it can be registered following the Indian trademark act 1999.