Trademarks are often protected under the law, i.e., under the TM Act and therefore the common law, i.e., under the remedy of passing off. If an individual is employing a similar mark for similar or related goods or services or is employing a well-known mark, the opposite person can file a suit against that person for violation of the IP rights regardless of the very fact that the trademark is registered or not.
Registration of a trademark isn’t a pre-requisite so as to sustain a civil or criminal action against violation of trademarks in India. The prior adoption and use of the trademark are of utmost importance under trademark laws. The court will usually grant during a suit for the infringement or passing off which includes a permanent and interim injunction, damages or account of profits, delivery of the infringing goods for destruction and price of the legal proceedings. it’s pertinent to notice that infringement of a trademark is additionally a cognizable offense and criminal proceedings also can be initiated against the infringers.
Points to think about While Adopting a Trademark
Any start-up must take care of selecting its brand name, brands, logos, packaging for products, domain names and the other mark which it proposes to use. you want to do correct due diligence before adopting a trademark.
The trademarks are often broadly classified into the following five categories:
- Generic
- Descriptive
- Suggestive
- Arbitrary
- Invented/Coined Generic marks mean using the name of the merchandise for the merchandise, like “Salt” for salt. Descriptive marks mean that the mark describing the character of the products, like using the mark “Fair” for the fairness creams.
Suggestive marks mean the mark suggesting the character of the products, like “Habitat” for home furnishings products. Arbitrary marks mean mark which exists in popular vocabulary but hasn’t any logical relationship to the products or services that they’re used, like “Blackberry” for phones. The invented/ coined marks mean coining a replacement word that has no dictionary meaning, like “Adidas”.
The strongest marks, and thus the simplest to guard, are invented or arbitrary marks. The weaker marks are descriptive or suggestive marks which are very hard to guard. The weakest marks are generic marks that may never function as trademarks.
India follows the great Classification of products and Services for the aim of registration of trademarks. the great Classification groups products into 45 classes (classes 1-34 include goods and classes 35-45 include services). the great Classification is recognized in majority of the countries and makes applying for trademarks internationally a streamlined process. Every start-up, seeking to trademark an honest or service, has got to choose between the acceptable classes, out of the 45 classes. While adopting any mark, the start-up should also confine mind and make sure that the mark isn’t getting used by the other person in India or abroad, especially if the mark is well-known.
it’s important to notice that India recognizes the concept of the “Well-known Trademark” and therefore the principle of “Trans-border Reputation”. For Example, there are few well-known trademarks like Google, Tata, Yahoo, Pepsi, Reliance, etc. Under the principle of “Trans-border Reputation”, Indian laws will also provide protection to trademarks like Apple, Gillette, Whirlpool, Volvo, which despite having no physical presence in India, are protected on the idea of their trans-border reputation in India.
