General

Registration and infringement of trademark

HAMNA

NEW DELHI :-When a trader places a mark or emblem on his merchandise, indicating that the goods with such a mark belong to such a person, it is considered his trademark.

• According to Lord Bestveri,

A trademark is a mark that usually includes a picture label or word or set of words used for a merchant’s merchandise or attached to the merchandise so that its merchandise reflects and distinguishes itself from similar merchandise of another trader. I think that this item is his own personal or that of his heirs which he has produced in his business or is offered for sale,

• According to Lord Justice James,
  When a person cannot display his goods as similar to another person trademark.
• As per section 2 (zb) of the Trade Act 1999,
  Trademarks refer to such symbols which represent line symbols.

In Rediff Communication Ltd. v. Senerboth AIR 2000 Bom.27 (a) it is expressed that Internet domain names are also very important and these bodies are property and should be protected like trademarks, services on the Internet. Provided they also have great importance.

Trademark functions

• Trade marks provide knowledge of the source of the goods, thus identifying the project.
• Trademarks indicate the quality of the goods.
• Trademarks advertise goods. Trade marks display the project whose person has trademarks.

Procedure for registration of trademarks.

The procedure related to registration of trade marks is as under the provisions mentioned in sections 18 to 23 of the Trade Marks Act 1999.

• Under Section 18
  This section determines how to present the application.
• Under section 18 (1),
  A person will apply for registration who wants to take trademarks.
• Under section 18 (2),
  A company will have to register the same trade for different types of goods.
• As per section 18 (3),
  If a person has more than one place of trade, then the trademarks have to be registered with the Registrar.
• According to Section 18 (4),
  The Registrar may accept the applicant’s application if all formalities have been completed.
• As per section 18 (5),
  The registrar may reject the application if the application has not been submitted in the prescribed manner, along with the reasons the registrar has to give reasons on which the application has been rejected.
• As per Section 19,
  The application has been accepted, that application will be returned by the applicant.
• As per Section 20 (1),
  The application will be advertised in the newspaper.
• As per section 21 (1),
  This section empowers the defendant to oppose registration.If a person gives notice of opposition to registration, then he can give information in Form TM-51.
• As per section 21 (2),
  In this section, it is necessary for the applicant to give notice of opposition to registration by the registrar.
• As per section 21 (3),Evidence given by the Registrar to the opposing party, given by the applicant.
• As per section 21 (4),
  Both parties are given a chance to be heard by the Registrar.
• As per section 21 (5),
  The registrar, after hearing both the parties, will decide who has the right to use the trademarks.
• As per section 21 (6),
  If the objection turns out to be false, compensation will be awarded by the opposing party.
• As per section 21 (7),
  If the registrar wishes, the details of the opposing party may be altered.
• As per Section 22,
  The registrar may allow the purification and modification of the application.
• As per section 23 (1),
  Registration of business in this section is complete.
• As per section 23 (2),
  After registering the applicant, the registrar will give a certificate which has the trademark registry stamp.
• According to Section 23 (3),if there is any deficiency in the application of the trademark of the applicant, then if the deficiency is not completed within 12 months, then the application will be considered as omitted.
• As per section 23 (4),
  The registrar may allow the purification to rectify the mistake in case of a mistake in the certificate of registration.

Effect of trade marks

• After registration of trade marks, the applicant becomes its owner and gets the monopoly to use it.
• The registration owner can file an injunction claim in case of violation of his business, the owner of the signs can recover compensation from the defendant.

As per Section 27,

• Violation of trade marks can bring the person whose trade marks have been registered.
• Violation of trade marks means that its goods or similar signs are made so that the customers feel that the goods belong to the same institution which owns such trade marks.

Essential elements of trade mark violations

• Is that the trade marks were not genuine or that they were copied from the trademarks of another person.
• Is that the merchandise on which the trade marks were used was in the condition of sale.

Following are some important claims related to trade mark infringement.

• Upendra Brahmachari vs Union Drug Company Limited 1926 Kolkata 837.
• Kartar Singh vs Rameshwari Banana AIR 1995 Delhi.
• SDL Ltd vs Himalaya Drug Company AIR 1998 Delhi 126.
• Roopa & Company Company AIR 1998 Delhi 126.
• Kishore Zarda Factory vs. J.P. Tobacco House AIR 1998 Mad 247.

Rights available to plaintiff

• In order to obtain injunction against the defendant by the court, he must prove that the public is likely to be confused by this violation of the trade mark.
• The plaintiff may also claim damages in addition to the injunction. The damages shall be for the damages awarded to the plaintiff by this misdemeanor or for the benefit which the defendant has obtained by this improper act.

Defense available to defendant,

• The plaintiff has no right to this trademark.
• The defendant also has the right to use this sign.
• Trademark items not registered.
• The right is not infringed.
• The plaintiff is denied the right to object.
• The plaintiff had agreed in the work.