Trademark : A General Overview
Updated: May 6, 2020
A trademark is, “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 a mark “includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colors or any combination thereof.” So technically speaking, even a group of words like a tag line is eligible for registration as a trademark, as long as they distinguish the goods/services of the trademark holder, in compliance with the Act.
Trademark can be defined as a particular symbol or logo used by any company for its product, service and brand. Trademarks can be either a logo or a tagline or a symbol or a hologram. Let us take an example to make it clear, for example by seeing the four circles in the logo of AUDI we come to know that it is a car of the AUDI company. Similarly, we can take the example of Nike. By seeing a 'tick' on any product such as a shoe or a bag we come to know that it is a Nike product. Even food franchises have their respective trademarks, such as when we see the symbol M, we come to know that it is a product of MC DONALD. Similarly, when we see the logo of an old man with KFC written on it, we come to know that it is a product of KFC. Nowadays we come across of trademarks on arguably every product. From food items to car to clothing, everything has a trademark.
When we start a company or start a service, we usually select a name for it. Trademarks give us a lot of benefits at this point of time. When we start a company we want it to be unique and use symbols or logo so that others can easily identify the company, when we do not want any other company or legal entity to use the symbol or logo of any other company for any financial benefits, what we can do is to register the company so that it is protected from any exploitation by the other companies for their own financial benefits of the business, so that if any other company intentionally or unintentionally uses the logo or symbol of any other company for their own financial benefits, what we can do is that we can file a case against the company who has copied the logo or the symbol and hence the loss suffered will have to be compensated by the company who used the logo of any other company for their own financial benefits.
Suppose we have started a business and the business has reached to a high level and the company has become a reputed one but if the company’s trade mark is not being registered as a result of which it is not secured and if any other business start-ups uses the company’s logo and symbols for their own financial benefits and register it, then the company can file a case against the company whose logo or symbol was copied even though the other company is honest and using the symbol or logo from before.
The first legislative act concerning trademarks was passed in 1266 under the reign of Henry III, requiring all bakers to use a distinctive mark for the bread they sold. The first modern trademark laws emerged in the late 19th century. The symbols TM (the trademark symbol) and ® (the registered trademark symbol) can be used to indicate trademark; the latter is only for use by the owner of a trademark that has been registered.
Trademark is a branch of Intellectual Property Right. Trademark includes anything such as name, word, device, sign, symbol used or is planned to be used. In business to distinguish between different manufacturers and get a distinct identification in the market. Rather in short, we can say Trademark is the brand identity of any business for its goods and services. Trademark provides protection to the owner by the rights of identification of his goods and services. And if any person tries to copy or use the proprietor or owner’s mark it is a punishable offence. Trademark can be used without registration also but it has disadvantages. So, it is extremely necessary to make a mark, a registered trademark by law. If the owner does not register its brand name, sign or symbol than any other person can use it for their own benefits. In today’s world not only business enterprises but popular personnel like Sharukh Khan, Sachin Tendulkar and many others have registered and trademarked their names, so that no one can use it for any self-purpose.
There are primarily four types of trademark as-
1. Product Trademark-A company generally makes a product trademark to differentiate its product from other manufacturers products. E.g.-Apple which is a brand but iphone is its product trademark.
2.Service Trademark-It’s a type of trademark where the company’s services are being trademarked, like Reliance Jio the mobile network and internet is the services which Reliance has trademarked.
3. Collective Trademark-Here a group of people or multiple people or organisations register something and provides it with a trademark so that no other can use it.
4. Certification Trademark-It is basically done by an organisation so that the product’s origin, quality and specification can be identified and defined. Like ISI, Fssai, etc.
There are also many benefits of Trademark: By seeing the trademark one can recognize a company/product from the other competitors in the market. Trademark helps resolving market confusion, trademark is mostly used as marketing tool like now one of the most important tools is promotion. Trademark is very necessary in brand awareness also.
[i] Section 2(b) of the Indian Trademark Act - http://www.ipindia.nic.in/acts-rules-tm.htm
Shreya Srivastava (BBA LL.B. (H), Sem 2, ALSK)
Soham Nandi, (BBA LL.B. (H), Sem 2, ALSK)
Akash Khan, (BBA LL.B. (H), Sem 2, ALSK)