Nov 2, 2017
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Intellectual Property Trademark in India

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While intellectual property law has evolved over centuries, it was not until the 19th century that the term intellectual property began to use, and not until the late 20th century that it became commonplace in the majority of the world. Since there are various Intellectual Property Types and Intellectual Property Rights. This article gives a detail information of  Intellectual Property Trademark with the help of Trade marks Act, 1999.

Intellectual Property Trademark

Introduction under Intellectual Property Trademark

“Trade mark” means

  • a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from choose of others and may include shape of goods, their packaging and combination of colors; and
  • in relation to a registered trade mark or mark used in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services, as the case may be, and
  • some person having the right as proprietor to use the mark, and in relation to other provisions of this Act, a mark used or proposed to be used in relation to goods or services for the purpose of indicating or so to indicate to a connection in the course of trade between the goods or services, as the case may be, and
  • some person having the right, either as proprietor or by way of permitted user, to use the mark whether with or without any indication of the identity of that person, and includes a certification trade mark or collective mark.

Right of traders in their trade marks under Intellectual Property Trademark

The law relating to registration of trade marks thus governed by the Trade and Merchandise Marks Act, 1958. A distinctive mark (as defined) can however registered under the said Act.

Trademark is anything which identifies the origin of the goods or services. It can be a name, symbol, logo, colour, sound etc. Trademark symbolizes the value or goodwill associated with the goods and its specific source. It distinguishes one firm from others. Benefits of trademarks are several-fold:

It helps consumers to identify products with desirable attributes quickly. It encourages firms to improve quality of their product. In absence of any identification mark, it would be difficult to distinguish the duplicates from high quality products. This will lower the incentive of the firm to make high quality products as the returns would be same as that of inferior products. Trademark protection gives a “monopoly power” over the distinctive trademark in the sense that others are debarred from using the same or a confusingly similar trademark. However this kind of monopoly power does not involve any welfare loss as its aim is not to prevent similar products but only to prevent use of similar or deceptive marks with the aim of confusing the consumer.

As a result, trademarks have mostly a positive incentive effect. It may seem that overall the economics of trademark protection and the intellectual property law of those marks are non-conflicting.

There are, however, some grey areas:

Issue of umbrella branding (brand extension) whereby a company uses a trademark made famous by sale of one product to enter into another market. For example Reliance entering retail marketing, entertainment industry, restaurants etc. Such brand extension strategies raise legitimate competition policy issues as a firm is essentially using an advantage acquired in other market to sell its products. Consumers are likely to try the products associated with a well-known brand name rather than an unknown brand with same quality making it difficult for a new company to enter the market.

Compulsory licensing of trademarks under Intellectual Property Trademark

Competition policies forcing companies to license their trademark may result in shoddy work at premium price associated with the brand. This will also ruin the reputation associated with the brand. This would affect the firm‘s incentive to provide consumers with high quality goods.


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Article Categories:
Trademarks Copyrights IP

Avani is a LL.B. student of New Law College. Classical use of language and adeptness with the written word make her treasure useful legal information. In her spare time, she writes prose and pursue an active interest in creative writing.

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