Trademark

Introduction to Trademarks

/ / Introduction to Trademarks

Definition and Meaning

A trademark is a word, symbol, or phrase, used to identify a particular manufacturer or seller’s products and distinguish them from the products of another. For example, the Trademark “Nike,” along with the Nike “swoosh,” identify the shoes made by Nike and distinguish them from shoes made by other companies (e.g Reebok or Adidas). Similarly, the trademark Coca-Cola distinguishes the brown-colored soda water of one particular manufacturer from the brown-colored soda of another (e.g Pepsi).

Under some circumstances, trademark protection can extend beyond words, symbols, and phrases to include other aspects of a product, such as its color or its packaging. For example, the green tinge color of Ray Ban sunglasses or the unique shape of a Coca-Cola bottle might serve as identifying features. A trademark may be located on a package a label or a voucher, or on the product itself. For the sake of corporate identity, trademarks are often displayed on company buildings.

Types of Trademarks

Trademarks can be of many types, some of them are mentioned below:-

  1. Product Mark:

A product mark is similar to trademark only, but it is to identify the products or goods instead of services. Herein the product is the unique selling feature of the company. To safeguard the product category and avoid any duplicity of the same a product mark is registered.

Initially, the product marks are denoted by TM, which states that the mark is not yet registered but in the process of registration. Once they are registered, they have to use ® to give it recognition in the market. This applies to all types of trademarks.

So product marks are those that are attached to the goods and products specifically to give it a distinct identity in the marketplace.

Examples: Pepsi®, Maggi®, etc.

  1. Service Mark:

This type of trademark is used to identify and distinguish the services rather than the products provided by any enterprise. The service mark is for the intangible products which include the action of helping or doing work for someone; it can also be a system supplying public needs such as transport, communication or other utilities such as electricity, water, etc. Service marks are also applicable for the routine maintenance or repair work.

  1. Collective Mark:

As the name suggests these marks are linked with a group of people and not one single product or service. These trademarks are primarily owned by an organization, institutes or any association that is related to several members.

Examples are like “CA” device is used by the members who fall under Institute of Chartered Accountants; another example is “CPA” which denotes members of the Society of Certified Public Accountants.

  1. Certification Mark:

The certification mark is created to show the standard of a company i.e. it is to show that a trader’s goods or services are certified as meeting particular standards. The issue of certification mark states that the product has successfully passed a test that further says about a certain standard that is reached by the product.

Example: Woolmark, which is certified for the fabrics on clothing, Agmark, and ISI.

  1. Shape marks:

These marks can also be categorized in Trade Dress wherein, other than the logo, label, and other identifiable symbols; a product can also be distinguished based on its packaging. An example can be the “Old Monk” liquor bottle.

By shape, it means the 3-D marks which are capable of making a difference in the goods and services of one businessman from another.

  1. Pattern Mark:

The general meaning of pattern is a repetition of similar design, so it is a type of trademark wherein the pattern is able to distinguish the product and services of one brand from another. These are difficult to be distinguished and have high chances of infringement with near similar designs.

  1. Sound Mark:

There has been an introduction of another form of trademark where the “mark” is of sound graphics that distinguishes the products and services of one from the other. Only those notations of sound that are graphically represented can be registered as trademarks. Sound marks being audio form of trademark is challenging but to figure out the accurate nature of the sound mark based on its registration, there needs clarity in graphical representation of the sound design. The sound logo can comprise musical notes, words and sound graphics.

For example,The Internet giant “Yahoo” has trademarked the iconic “Yahoo Yodle”,which is incredibly catchy and became synonymous with the brand.

History

In trademark treatises it is usually reported that blacksmiths who made swords in the Roman Empire are thought of as being the first users of trademark.

The first trademark legislation was passed by the Parliament of England under the reign of King Henry 1266, which required all bakers to use a distinctive mark for the bread they sold. The first modern trademark laws emerged in the late 19th century.

In France the first comprehensive trademark system in the world was passed into law in 1857 with the “Manufacture and Goods Mark Act”.

In Britain, the Merchandise Mark Act, 1862 made it a criminal offense to imitate another’s trade mark ‘with intent to defraud or to enable another to defraud’. In 1875, the Trade Marks Registration Act was passed which allowed formal registration of trade marks at the UK Patent Office for the first time.

In the United States, Congress first attempted to establish a federal trademark regime in 1870. However, the Supreme Court struck down the 1870 statute in the Trade Mark Cases later on in the decade. In 1881, Congress passed a new trademark act.

History of Trademark laws in India

The law of trademark in India before 1940 was based on the common law principles of passing off and equity as followed in England before the enactment of the first Registration Act, 1875. The first statutory law related to trademark in India was the Trade Marks Act, 1940 which had similar provision like the UK Trade Marks Act, 1938. In 1958, the Trade and Merchandise Marks Act, 1958 was enacted which consolidated the provisions related to trademarks contained in other statutes like, the Indian Penal Code, Criminal Procedure Code and the Sea Customs Act.

Importance

One of the most important and lucrative reasons for getting a trademark registered is that the value of the trademark appreciates like any other asset if the company grows then the trademark can even be used as a collateral . For example, when the company “Kingfisher” was doing very well their trademark was used as a collateral to take out huge loans.

It also helps as a branding exercise and can be used as a tool for promotion as well as a way for a business to distinguish itself in a crowded market. For example, the picture of the “Parle-G Girl” is instantly recognizable in a market which has hundreds of Marks for biscuits.

Getting a trademark registered is also cost-effective. It only takes a few thousand rupees to get the trademark registered and the initial investment is worth it in the long run.

Conclusion

A trademark is a powerful right. For many businesses, a Trade Mark is a valuable asset which plays a key role in the commercial success of the business. Reputation can improve the distinctiveness of the mark and increase its scope of protection. Trade marks act as a motivation to sustain quality since they act as a guarantee to the consumer.

 

WRITTEN BY

Shivendra Mishra

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