INTELLECTUAL PROPERTY RIGHTS (IPR)
intellectual-property-rights-IPR
Intellectual Property (IP) is that kind of property which includes intangible creations of human minds or human intellect. Presently, there are various types of IP, and some countries recognize more than others. Most well known types can be said as copyrights, patents, trademarks, Geographical Indications, etc.
IPR are the rights given to a persons over the creations of their minds. This 21st century is itself witnessing the emergence of “Intellectual Capital” as a key to wealth driver of international trade between countries, all because of policies of globalization and liberalization holding the grip in the market. IPR have become an irreplaceable element of India’s business fraternity, whether in terms of new statutes or judicial pronouncements. WTO’s agreement has paved way for compliance with the TRIPS (Trade Related Aspects of Intellectual Property Rights). This article explores specifically about trademarks as an IP and its emphasis in India.
TRADEMARKS
⇒ Introduction
⇒ Types of Trademarks
⇒ Governing Regulations
⇒ Trademark infringement
⇒ Important case-laws
⇒ Conclusion
INTRODUCTION :-
Trademark, a branch of IP, a unique symbol that differentiates one brand from the other and is regarded as an necessary tool for protecting any brand from being legally replicated. It permits people to maintain ownership rights of their innovative product and creative activity. It may include a name, a word, picture mark, phrases, slogan, sign or any combination thereof, used in commerce to identify and distinguish goods from goods of other enterprises. (for examplethe trademark “Nike” identify the shoes made by Nike and distinguishes them from shoes made by other companies like. Adidas or Bata)
The TRIPS agreement says about the protection of recognition of service marks, indefinite periodical renewal of registration, abolition of compulsory licensing of trademarks, etc. (Intellectual Property Laws in India, n.d.) Two essential elements to be fulfilled before registering for trademark : it must be used in commerce and must be distinctive.
Trademark is also known as a marketing tool which increases financing in business. Customers are more influenced and get attracted towards distinctive trademark that reflects the quality of the product. It makes the process of selecting easier for consumers of a given good. Instead of reading the fine print on the can of Sprite, they can look for its trademark. While purchasing clothes they can get ready assurance of quality by looking at its logo.
Any person claiming to be the owner of the trademark or for future purpose may apply in writing to the appropriate registrar in a prescribed manner. In India, registration is not compulsory or mandatory but once registered it gives various rights to the owner and redressal and relief in respect of its infringement becomes easier.
TYPES OF TRADEMARKS :-
Types of Trademarks are brand identifiers that influence customer behaviors. Let’s look at its more detailed version by getting knowledge that what sets one apart from another, as recognized by Trademark Act, 1999 :
⇒ Word Marks- This is expected to play a critical role in promoting and selling a product or service. It refers to any specific words used intentionally to identify a product or a service provided by a company. The texts “Nestle” or “Maggi” are good examples of it.
⇒ Service Marks- This is another kind of trademark. Companies that provide services in a specific or in a particular field as their primary business are identified with their service marks. For example, “Zomato and Swiggy” represent two brands in restaurant service industry, also “Ola and Uber” are known for their transportation services.
⇒ Logos and Symbols- Several brands use printed designs and characters so that customer can identify the brand even if the name is not mentioned. For instance, any shoes of “Nike” can be identified with merely looking at its symbol or logo, even if there’s no mention of brand name.
⇒ Shapes of Goods- This helps us to identify the product by its visual appearance. This type of trademark is typically categorized under the trade-dress clause. Like when we look at “Dettol’s” bottle, we can recognize it even if the brand name or label gets distorted or faded.
⇒ Series Marks- Under this type of trademark, there’s a series or family of marks that share the same or the common name. Mostly, it is distinguished by a shared prefix or suffix. It can be seen in “Mc” as a prefix in the products of McDonald like. McVeggie Burger, McFlurry, etc.
⇒ Collective Trademarks- These are linked to a group of people and not to a particular product or service. Typically, organizations, collaborative associations, institutes etc. are known for this. For example, Advocates have their own symbol attached with their profession, so do have the CAs (Chartered Accountants) or Doctors.
⇒ Certification Marks- It is verification or confirmation by providing assurance that some judicial formality is complied with. By this, it is indicated that the particular company is duly certified and proven to adhere to the standard mentioned. Like “hallmark” in gold products or “FSSAI” in food items.
GOVERNING REGULATIONS
Before 1940 there was no specific law for governing trademarks in India. Various problems regarding the infringement of registered or unregistered trademarks were resolved through some sections of Specific Relief Act, 1877 or Indian Registration Act, 1908.
To overcome these difficulties, Indian Trademark Act was enforced in 1940 and was later on replaced with the Trademark and Merchandise Act, 1958. It provides better protection and prevents misuse or fraudulent use. The act also provides for the registration of trademark, so that the owner may have exclusive legal rights over its use.
To comply with the rules of TRIPS agreement, previous law was replaced with Trademark Act, 1999 and the Trademark Rules of 2017 framed under the Act. It gives complete definition of the word infringement and provides remedies which are easily enforceable on infringement of rights and also gives the right of police arrest.
TRADEMARK INFRINGEMENT
If there’s infringement of registered trademark, the user can take legal action and for unregistered also passing off or some common law remedies are available but their implementation process is quite hectic.
Infringement is done by a person who not being a registered proprietor or a person using by way of permitted use in the course of trade, a mark which is identical with or deceptively similar to the trademark in relation to goods or services in respect of which trademark is registered. (blog.ipleader.in, 2019)
⇒ Sec. 29 of Trademarks Act, 1999 deals with infringement of registered trademarks.
⇒ Sec. 103 & Sec. 104 of IPC (Indian Penal Code). Sec. 103 mentions about criminal charges and punishment.
IMPORTANT CASE-LAWS
⇒ Whatman international ltd. V. P. Mehta and others - An Indian company was selling papers by using the similar brand name of a patented and with registered trademark holding American company. American company was keeping watch on Indian company and ultimately filed a case against it in India of trademark infringement. Due to which Indian company suffered huge loss and had to pay approx. 3,85,00,000/- rupees.
⇒ Starbucks vs Sardarbuksh - Sardarbuksh started coffee chain with similar logo and trademark of starbucks. Starbucks had its trademarks registered in India. And when case was filed Saedarbuksh had to change its name and logo and had to pay huge fine.
⇒ PhonePe vs BharatPe- In this case it was held that parties can’t misspell generic words in order to claim exclusivity over them especially at that prima facie stage unless there is extensive evidence that such misspelling has acquired secondary meaning through continuous commercial use.
CONCLUSION
India being a free and mixed market, has many industries that operate under it. The competition is extreme and for any enterprise to thrive in this era of neck to neck competition, brand value and recognition is of utmost importance. And this purpose can be fulfilled by getting IP rights or trademarks registered. For a country like India, where the majority of population is still ignorant of functioning of IPR laws, the threat of jail or fine could be potentially used as a tool for getting the purpose fulfilled.
These exclusive rights are generally subject to a number of limitations and exceptions, aimed at fine-tuning the balance that has to be found between legitimate interests of right holders and users.
