Manish M. Bhagnari

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Trade Marks

What is a trademark?

A “trademark' is a unique identifier, often referred to as a “brand” or “logo”. A trademark is a sign capable of distinguishing the goods or services produced or provided by one enterprise from those of other enterprises. Trade marks can be words, letters, numerals, drawings, labels, logos, slogans, colours, shape, packaging – or any combination of these, as long as they can be graphically represented.

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Words: This category includes company names, trade names, brands, labels, surnames, forenames, geographical names and any other words or sets of words, whether invented or not, and slogans.

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Letters and Numerals: Examples are one or more letters, one or more numerals or any combination thereof, such as those found on a logo or a label, or a device, of any famous brand.

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Devices: This category includes fancy devices, drawings and symbols, and also two dimensional representations of goods or containers.

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Combinations of any of those listed above, including logotypes and labels.

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Colored Marks: This category includes words, logos, devices, and any combinations thereof in color, as well as color combinations and color as such.

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Three-Dimensional Signs: A typical category of three-dimensional signs is the shape of the goods or their packaging. However, other three-dimensional signs such as the three-pointed Mercedes star can serve as a trademark.

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Criteria of Protectability
The requirements which a sign must fulfill in order to serve as a trademark are reasonably standard throughout the world. Generally speaking, two different kinds of requirement are to be distinguished.

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The first kind of requirement relates to the basic function of a trademark, namely, its function to distinguish the products or services of one enterprise from the products or services of other enterprises. From that function it follows that a trademark must be distinguishable among different products.

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The second kind of requirement relates to the possible harmful effects of a trademark if it has a misleading character or if it violates public order or morality.

Trademarks must be distinctive

A trademark must be distinctive of a single trader’s goods or services. This means that it must be unusual enough that consumers would identify it with only one trader. If a trademark is not distinctive it means that the public would not identify the trade mark as a “brand” or “logo.” For example, the term BUDGET SUPERMARKET for retail services in relation to food and household items is unlikely to identify one trader from any other in that trade channel. The term could be used in connection with many different traders and it would be unfair to grant a monopoly of such a term to any one trader.
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Trademarks can’t be descriptive of a characteristic of the goods or services. Marks that simply describe the goods or services to which they relate are unlikely to be registrable.
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For example the word “apple” cannot be registered as a trade mark for fruit. However, APPLE® is not descriptive of computers and therefore is distinctive in relation to computers.

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Trademarks can’t be terms that are customary in the trade

Marks that are commonly used in relation to the goods or services for which the mark is being used may also not be distinctive. A colloquial or generic term that has been commonly used to describe a characteristic of the goods or services may not be registrable. For example, the term GEL is commonly used to describe a toothpaste of different brands, and would not be registrable as a trade mark in relation to just one toothpaste.

IMPORTANT POINTS ABOUT TRADE MARKS

PROCEDURE FOR TRADE MARK APPLICATION

CLASSIFICATION OF GOODS AND SERVICES

ADMINISTRATICE STEPS INVOLVED FOR TRADE MARK REGISTRATION