1 Nov 2019, 10:00 — 7 min read
Background: It is said that Intellectual Property is a key element of economic development. A country that is able to secure ownership over products and processes for its businesses guarantees not just better domestic income, but also international recognition and increased sales. This makes ownership over product marketing and identification, commonly called 'trademarks' extremely important. What is also equally important is knowing its essentials to avoid exorbitant legal battles over securing this kind of intellectual property. In this article, Vakilsearch highlights certain aspects of trademarks that businesses must know and apply in their trademark building and filing processes.
There exist several kinds of intellectual property rights and a layman may be confused about what specific intellectual property right would apply to which kind of product. Generically speaking, codes, literature, digital works, paintings, designs are subject to copyrights. While creativity may vest in designing a logo, just like an artwork or writing a catchy slogan, these are not covered by the Copyrights Act. Any logo, for example just a single tick for Nike, a brand name such as Coca-Cola, a word – whether intelligible such as Classmate or meaningless, such as Cello, a label name – such as that belonging to the creator, Sabyasachi or numerals such as Forever 21 or even a combination of colours used, the red and white of Coca Cola, all qualify to be a trademark. Since a business uses all of these in its dealings, casting an impression of a certain standard of quality, the law prohibits anyone else from employing the same combination and gives the impression that the goods belong to someone else.
According to the Trademark Act, 1999 a trademark must be a mark which includes a device, brand, heading, label, ticket, signature, word, letter, name, numeral, packaging or combination of colours or any combination of these attributes.
Thus, it is advisable to choose distinctive marks, from very early on in the business to secure rights arising out of long use. It is also important to run a trademark search and avoid any possible similarities with an already registered trademark.
Also read: Trademark your brand to safeguard your brand
No and Yes. Although a registered trademark is preferred as it comes in handy while battling out legalities in a court, even though a trademark may not be registered, it will still be given validity by looking at factors like its duration of existence, the value customers attach and its outreach. In case of a clash between two brand names – one registered and unregistered, the verdict of the court is often seen to tilt towards an older brand name even though it may be unregistered. However, a trademark that is registered and has been in continued use for a long time increases your chances of winning a potential legal battle on trademark infringement. Moreover, in case the trademark is registered, you’re allowed to file a suit for infringement. For an unregistered trademark that is acquired through usage, the court proceedings are initiated for “passing off”.
Registered trademarks are also allowed to use the ® symbol. Though a trademark once registered, is valid forever, it must be renewed every 10 years.
Image source: shutterstock.com
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Posted byVakilsearch Staff
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