Legislation
The Indian law of trademarks in the Trade Marks Act, anchored 1999th The law aims to provide for the registration of trademarks for goods and services in India. Granted rights under the Act are in operation in India.
What is a Trademark
A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or patterns in the trade, used to identify which anddistinguish the origin of the products or services of one undertaking from those. A service mark is the same as a trademark, except it identifies and distinguishes the source of a service rather than a product. Normally, a mark for goods on the product or its packaging, while a service mark appears in advertising for the services.
A brand is different than a copyright or a geographical indication or a certificate. Copyright protects an originalartistic or literary expression, protects an invention for a patent for a geographical indication is used to identify the goods with special characteristics from a defined area.
Classification of Goods and Services *
Almost all jurisdictions including India employ a classification system that groups of goods and services in classes for which registration was. Most countries follow the same system, namely the International Classification of Goods and Services, which consists of 34 classes of goods and 8 classes of services. (The WIPO recently revised the Nice Classification, the addition of three service classes (43, 44, 45) and the restructuring of Class 42, retaining certain services. This provision has not yet been implemented in India).
For example, printed matter, newspapers and magazines in class 16 and services in the area of ??publishing are classified in Class 41. Time Incorporated, United States of America is the registered holder of the > Mark "TIME" in about 150 countries.
Rights from the registration granted
The registration of a trademark gives the registered owner of the trademark the exclusive right to the trademark in relation to the goods or services for which the trademark is registered use. During the registration of a trademark is not compulsory it offers better legal interventions for the injury.
Who can apply > Trademark
Anyone can register a trademark application for registration under the brand whose jurisdiction the principal place of business of the applicant in India falls. In the case of a company that is, anyone can apply in his name for subsequent assignment of registration of the company.
Trademark Search
Before applying for registration, it is advisable to do a review of pre-registered> Brands to ensure that the registration can not be proposed because of the similarity of the brand, an existing or forbidden to be denied.
Filing and prosecuting trade mark applications
The application may be filed on Form TM-1 with prescribed fee of Rs. 2500 / ? in one of the five office of the Trademark Act in Mumbai, Delhi, Kolkata, Chennai and Ahmedabad registry, depending on where the applicant has his domicile or head office, theBusiness. The question is examined to determine whether it is distinctive and not issued in conflict with existing registered or pending registration and inspection report. If you find acceptable, then it is advertised Trademark Journal, objectionable to others. If there is no opposition or if the opposition is decided in favor of the applicant then the mark is registered and a certificate is issued on registration. If the candidate is not the answerHowever, not all objections will be a final rejection of the seller. The applicant may then appeal to the Chamber of intellectual property, an administrative authority to lodge an appeal.
A common basis for the rejection is a risk of confusion between applicant's mark with registered mark or pending prior mark. Brands that are only descriptive of applicant's goods or services or a characteristic of the goods or services may be excluded also be registered. Brands, from the geographicalTerms or surnames may also be denied. Trademarks can be rejected for other reasons.
Duration of a trademark
The term of a trademark registration is for a period of ten years. Is an extension for further period of 10 years each possible. Unlike patents, can copyright, trademark or industrial design rights indefinitely if the owner continues to use the mark. However, if a trademark is not renewed, is obliged to be away fromrecorded.
The use of "TM", "SM" and "(R)" Symbols
Anyone who claims rights in a mark you can do with the TM (trademark) or SM (service mark) designation with the mark, the public's attention on the appeal. You do not need a recording, or even up to the application to use this name. The statement may or may not be valid. The registration symbol (R), may only be used if the mark is registered.
Remedies for infringement and passing off
Two types ofRemedies available to the owner of a trademark for unauthorized use of their own brand or imitation by third parties. These agents are: ? "action for infringement 'in case of a registered trademark and' action for abuse of the * 'in the case of an unregistered trademark.
The basic difference between an infringement action and an action for abuse is that there is a remedy of the law and the second is a common law remedy. Consequently,to establish a violation with respect to a trademark, it is only necessary to determine that the mark is identical or confusingly similar to the trademark infringement and has no further evidence is needed. In the case of a passage from the action, showing that the marks are identical or deceptively similar alone is not enough. The use of the mark should be likely to deceive or cause confusion. Moreover, once in a passage action is necessary to show that the use ofMark by the defendant could cause injury or damage to the goodwill of the plaintiff, while in a fit of injury, do not lead to a trade mark by the defendant, should any damages to the plaintiff.
However, registration does not upstage a user's first line of the brand in India, followed the rule is' priority in adoption prevails recording is the priority. In many other countries, like Saudi Arabia, Nepal, etc., where the first party registrationBrand is considered as one party, the brand itself, regardless of prior use of the brand.
* Pass comes with the fact of deception. The doctrine is based on the principle that a company is not based on selling its products under the pretext that they are the goods of another trader. Historically, the market was with ensuring the quality of goods to consumers who had come to rely on in the course of trade were concerned. In order to ensure that the common lawdeveloped the unauthorized disclosure of which contributed to a person representing his property, has to be like, and not someone else's property.
Protection measures by the owner of a mark may be taken to protect his rights: ?
The owner should use and renew the trademark regularly and in time. If the brand of abuse by others would have a claim for infringement and passing off and also file criminal charges.
The holder should be aClock on the brand and trade chamber in opposition to the official institution, whether identical or deceptively similar trade are promoted published. You should start the procedure if a correction deception identical or similar mark is registered.
The use of trademarks in foreign countries
Trademark rights are granted in each country. A replay of India offers protection only in India and itsTerritories. If a trademark owner who wants to protect a trademark in other countries, the owner must seek protection in each country separately under the relevant laws.
International protection of trademarks
There is still a system in which a trademark application alone is sufficient to protect their brand internationally. * Paris Convention does, however, certain privileges to member countries for the registration of trademarks. A party that their ranks first trade mark application in one member state to the Convention, such as India may, within six months from that date of filing applications for files in the other member countries of the priority of the first application. If such a mark is accepted for registration, shall be deemed registered on the same day on which the application was made ??in the country of origin.
It can also be multi-storage systems in some regions, in order to obtain> Protection of the brand. For example, Belgium, Netherlands and Luxembourg one register mark, commonly referred to as the brand of the Benelux Register. The European Union of 15 countries has its own trademark system, known as the Community trade mark was adopted. The African Intellectual Property Organization (OAPI), a group of African countries have their national trademark offices with a common brand replacedOffice that a single trademark registration valid in all Member States provides.
Almost all countries have trademark offices where applications may be filed. Therefore, when considering trademark protection in multiple countries, it is more convenient to start with a list of countries where registered trademark protection is available. The decision of where to register a trademark has several aspects. Countries where a trademarkis currently in use, but before the brand is not recognized, should be the first to be taken account in the search for legal protection. If you take the short or in other developing countries within a few years in operation, then these countries will be involved. The last group of countries should, with a history of unauthorized recording of other brands.
* Paris Convention is the most basic and important multilateral agreements on intellectual propertyProperty, including trademarks, of which India is a member. E 'defines the meaning and scope of protection of intellectual property rights and established the basic principles and rules.
Source: http://legal-trademarks.chailit.com/brands-in-india-law-procedure-7.html
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