trademark

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Trademark presentation with definition, history, act and amendments, different types, similarities, infringements and example of infringement.

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Presentation On Trademark By : Ravi M istry M. Pharm. QARA Sem-I L. J. Institute Of Pharmacy , Ahmedabad

CONTENT:

CONTENT Meaning Of Trademark History Of Trademark Indian Trademark Low Different Signs Of Trademark Trademark similarity Trademark Classification In India Trademark Registration Advantages of trademark Trademark Infringement Conclusion References

MEANING OF TRADEMARK:

MEANING OF TRADEMARK A trademark or trade mark is a distinctive sign or indicator of some kind which is used by an individual, business organization or other legal entity to uniquely identify the source of its products and/or services to consumers, and to distinguish its products or services from those of other entities. A trademark is a device which can take almost any form, as long as it is capable of identifying and distinguishing specific goods or services.

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(for an UNREGISTERED TRADEMARK , that is, a mark used to promote or brand goods) (for an unregistered SERVICE MARK , that is, a mark used to promote or brand services) (for a REGISTERED TRADEMARK ) MEANING OF TRADEMARK A trademark may be designated by the following symbols: TM SM R

HISTORY OF TRADEMARK:

HISTORY OF TRADEMARK The law of trademark in India before 1940 was based on the common law principles of passing off and equity as followed in England before the enactment of the first REGISTRATION ACT, 1875. The first statutory law related to trademark in India was the TRADE MARKS ACT, 1940 which had similar provision like the UK TRADE MARKS ACT, 1938 . In 1958, the TRADE AND MERCHANDISE MARKS ACT, 1958 was enacted which consolidated the provisions related to trademarks contained in other statues like, the INDIAN PENAL CODE , CRIMINAL PROCEDURE CODE and THE CUSTOMS ACT .

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The TRADE AND MERCHANDISE MARKS ACT, 1958 was repealed by the TRADE MARKS ACT, 1999 and is the current governing law related to registered trademarks. The 1999 act was enacted to comply with the provisions of the TRIPS ( Agreement On Trade Related Aspects Of Intellectual Property Rights ). Though some aspects of the Unregistered Trade Marks have been enacted into the 1999 act, law rules based on the principles evolved out of the judgments of the courts. Where the law is ambiguous, the principles evolved and interpretation made by the courts in England have been applied in India taking into consideration the context of our legal procedure, laws and realities of India. HISTORY OF TRADEMARK

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Indian trademark law provides protection to trademarks statutorily under the trademark act, 1999 and also under the common law remedy of passing off . Passing off is a common law tort which can be used to enforce unregistered trademark rights. The tort of passing off protects the goodwill of a trader from a misrepresentation that causes damage to goodwill. Statutory protection of trademark is administered by the controller general of patents, designs and trademarks, a government agency which reports to the department of industrial policy and promotion (DIPP), under the ministry of commerce and industry. INDIAN TRADEMARK LAW

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The law of trademark deals with the mechanism of registration, protection of trademark and prevention of fraudulent trademark. The law also provides for the rights acquired by registration of trademark, modes of transfer and assignment of the rights, nature of infringements, penalties for such infringement and remedies available to the owner in case of such infringement. INDIAN TRADEMARK LAW

DIFFERENT SIGNS OF TRADEMARK:

DIFFERENT SIGNS OF TRADEMARK Word and/or slogan [e.g. Fair & lovely, Dell, Acer, Claris, Amway (better ideas, better life), YouTube (Broadcast yourself), Microsoft (Be what’s next), Zydus (Dedicated to life) etc.] Letter and/or numeral (e.g. LG, RS, AGL, HTC, ISRO, iffco, 7up, Hayward 5000, Bisleri 500, Britannia 50-50 etc.) Device and/or images (e.g. Fastrack, HPT medical devices, KFC, Adidas, Audi, Nike, Macdonald, Playboy, Apple, Facebook etc.) Sound marks (e.g. Idea, Airtel, Intel, Britannia, Nokia, Yahoo, ESPN etc.) Color marks (e.g. Coca-cola, Google, Orange telephone company, John Deere, etc.) Three-dimensional signs (e.g. Coca-cola bottle shape, Mercedes Benz LOGO, Toblerone chocolate packaging etc. )

DIFFERENT SIGNS OF TRADEMARK:

Invisible signs (smell, scents, taste, texture etc.) - For Smell & Scents Marks e.g. - Goods:  office supplies, namely, file folders, hanging folders, paper expanding files Description of Mark:  The mark consists of a peppermint scent or fragrance. Owner:  The Smead Manufacturing Company; - Services:  advertising and marketing Description of mark:  the mark consists of a rose oil scent or fragrance. Owner:  kalin manchev Ltd. Etc. - For Taste & Texture Marks e.g. - Goods:  wines Description of Mark:  The mark consists of a leather texture wrapping around the middle surface of a bottle of wine. The mark is a sensory, touch mark. Owner:  The David Family Group LLC - Goods:  Corn-based snack foods Description of Mark:  The mark consists of the configuration of a spiral-shaped chip. Owner:  FRITO-LAY NORTH AMERICA, INC. Etc. DIFFERENT SIGNS OF TRADEMARK

DIFFERENT SIGNS OF TRADEMARK:

Service trademarks: are used to identify the services of an entity, such as the trademark for a broadcasting service, retails outlet, etc. they are used in advertising for services. (e.g. Hotels, Clubs , Malls, etc .) Certification trademarks: are those that are capable of distinguishing the goods or services in connection with which it is used in the course of trade and which are certified by the proprietor with regard to their origin, material , the method of manufacture, the quality or other specific features. (e.g. ISI marks, ISO marks, Wool marks etc. ) Collective trademarks: are registered in the name of groups, associations or other organizations for the use of members of the group in their commercial activities to indicate their membership of the group. (e.g. UAW- United Auto Workers etc. ) DIFFERENT SIGNS OF TRADEMARK

TRADEMARK SIMILARITY:

TRADEMARK SIMILARITY Owners of existing trademarks may oppose new trademark applications, sometimes leading to costly judicial arbitration about the risk of confusion. In general, marks are considered verbally similar for a variety of reasons, such as pronunciation , spelling and conceptual closeness . Marks with very similar phonetic equivalents may be confusing for the public (e.g., STOXX and STOCKX). However, the pronunciation of trademarks may not always be obvious nor unique , since they sometimes consist of invented words (e.g., CELCOM) or foreign words. Marks that are considered similar often result from using numbers for words, swapping letters, and adding or deleting letters or syllables. E.g. similarity can result from having a single letter replaced (e.g., OTOR and ATOR, 555 and S 55) or deleted (e.g., BALLY and BALL).

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Individual circumstances often govern the similarity, since single-letter modifications do not necessarily lead to confusion (e.g., SFS and TFS), particularly for short marks. Similarities also often result from marks that have the same number of syllables and the same start or end of words (e.g., MOBILAT and MOBIGEL, GRILON and GELON). Conceptual closeness can result from using translations, synonyms, or antonyms (e.g., RED BULL and BLUE BULL). Marks often consist of collections of words forming a phrase or slogan. Adding words may be sufficient to distinguish new marks from older ones (e.g., LAB MED and LABMED SCHWEIZ), but this cannot be considered a general rule (e.g., VISA and JET-SET VISA). TRADEMARK SIMILARITY

TRADEMARK CLASSIFICATION IN INDIA:

TRADEMARK CLASSIFICATION IN INDIA According to section 2 ( zb ) of the trademark act, 1999 “trade mark means a mark capable of being represented graphically and which is capable of distinguishing the goods or service of one person from those of others and may include shape of goods, their packaging and combination of colors.” A mark can include a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of color or any such combinations.

TRADEMARK CLASSIFICATION IN INDIA:

Trademark in India is classified in about 45 different classes which includes chemical substances used in industry, paints, lubricant machine and machine tools, medical and surgical instruments, stationary, lather, household, furniture, textiles, games, beverages, preparatory materials, building materials, sanitary materials and hand tools, other scientific and educational products. These classes again are further sub-divided. The main objective of trade mark classification is to group together the similar nature of goods and services. Here are the classes for products and for service. TRADEMARK CLASSIFICATION IN INDIA

TRADEMARK REGISTRATION:

TRADEMARK REGISTRATION

Procedure/Steps For Trademark Registration:

Procedure/Steps For Trademark Registration Filing of an application for registration by a person claiming to be the proprietor of a trademark, in the office of the trademark registry, within the territorial limits of the place of business in India. Examination of the application by the registrar to ascertain whether it is distinctive and does not conflict with existing registered or pending trademarks and examination report is issued. Publication of the application after or before acceptance of the application in the trademark journal. After publication if any person gives notice of his opposition to the registration within three months which may be extended to the maximum of one month. If the opposition has been decided in favour of the applicant of the registration of trademark , the registrar shall register the trademark. On the registration of the trademark the registrar shall issue to the applicant a trademark registration . Today, as per The trademark rules, 2002 , the application fees (similar to a tax) are Rs. 3500 per trademark.

Conditions For Signs Of Trademark:

Conditions For Signs Of Trademark The sign must fulfill certain conditions in order to be protected as a trademark or another type of mark: It must be distinctive, so that consumers can distinguish it as identifying a particular product, as well as from other trademarks identifying other products; It must not be deceptive, that is, it should not be likely to mislead the consumers as to the nature or quality of the product; It should not be contrary to public order or morality; It should not be identical or confusingly similar to an existing trademark. This may be determined through search and examination by the national office, or by the opposition of third parties who claim similar or identical rights.

Term/Duration Of A Trademark:

Term/Duration Of A Trademark The term of registration of trademark is 10 (ten) years, but may be renewed subject to the payment of the prescribed fee, in accordance with the provisions of the trademark act, 1999. an application for renewal of a trademark can be filed within six months from Constantia (body) the expiry of the last registration of trademark. Use Of The .TM. And ® Symbols Generally, one who has filed an application (pending registration) can use the TM (trademark) designation with the mark to alert the public of his exclusive claim. The claim may or may not be valid. The registration symbol “®” may only be used when the mark is registered.

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Protects your hard earned goodwill in the business Protects your name/ brand name from being used in a same or similar fashion, by any other business firm, thus discourages others from cashing on your well built goodwill. Gives your products a status of branded goods. Gives an impression to your customers that the company is selling some standard products or services. The exclusive right to the use of the trade mark in relation to the goods or services in respect of which the trademark is registered. To obtain relief in respect of infringement (misuse by others) of the trademark. Power to assign (transfer) the trade mark to others for consideration. ADVANTAGES OF TRADEMARK

TRADEMARK INFRINGEMENT:

TRADEMARK INFRINGEMENT Trademark infringement is a violation of exclusive rights attaching to a trademark without the authorization of the trademark owner or any license. Trademark infringement mostly occurs when a person uses a trademark which may be either a symbol or a design, which resembles to the products owned by the other party. The trademark owner may begin a legal proceeding against a party, which infringes its registration. Offences shall be punishable with imprisonment for a term of minimum of six months but which may extend to three years and with a minimum fine of fifty thousand rupees but which may extend to two lakh rupees or more. For adequate and special reasons mentioned in the judgment, the court may impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand rupees.

Trademark Infringement Example Case:

Trademark Infringement Example Case Amul won trademark case in Gujarat HC in 2007. Dunlop pneumatic vs. Dunlop lubricant (1899) Computer vision corporation vs. Computer vision ltd. (1975) A.B.Volvo vs. Volvo steels ltd., 1998 Dongre vs. Whirlpool corporation (1996) Kodak for cameras by plaintiff vs. Kodak for bicycles by defendants.

CONCLUSION:

CONCLUSION The trademark is for protecting the name of the product or services rather the product itself; Trademark assures the customer about the source of product, though the quality of the product is not assured by the trademark; The trademark should be distinctive; Deceptively similar marks, geographical names etc. can not be registered as a trademark; In India, the trade mark act of 1999 is presently in force; The term of trade mark production is 10 years, which can be renewed from time to time, indefinitely; Trademark can be assigned or transmitted; Using deceptively similar marks, falsifying the mark or using unregistered mark cause infringement under trade mark act; and The penalties against offences related to trade mark can range from fine to imprisonment.

REFERENCES:

REFERENCES http://ipindia.nic.in/tmr_new/default.htm http://www.iip.or.jp/translation/ono/ch2 http://www.iprlawindia.org/trademarks www.law.cornell.edu/wex/ trademark_infringement http://www.ipd.gov.hk/eng/pub_press/speeches/Trade_Mark_Search_Workshop_19.11.2004(Eng) www.the trademark company.com http://lms.wipo.int/en/file.php/50/dl001pdfdownload.pdf http://www.researchgate.net/publication/222539009_Searching_trademark_databases_for_verbal_similarities/file/9fcfd510c5d5d765b3 http://www.erikpelton.com/2011/04/11/examples-of-non-traditional-trademarks-scents-textures-uniforms-and-more

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