The writer speaks about intellectual property rights and explains the concept of a Trademark
One of the most important desire of any human being is to own property, given that it is an important asset to be owned. Property provides dignity, status and respect for the holder.
Apart from physical and tangible property there exists one more form of property and that is the property generating from the human brain which is well understood globally as ‘Intellectual Property’ and is an intangible, incorporeal and abstract property.
The outcome of this intellectual property is idea, creation, creative ability, some secret knowledge or knowhow which might relate to business, medicine, art, culture, knowledge from customs and traditions, innovations in different area or walks of life etc. Although it has gained more importance and value in the recent times; these intellectual properties, like physical and tangible property, are also protected by different laws and recently these protective laws have been developed to a great extent to meet the demands of the world at large.
Some of the intellectual properties are artistic works like music, sculpture, art, literature, painting so also trade secrets, domain name on the internet, trademark / service mark, inventions, indigenous and traditional knowledge, computer programs, design which may include design of the goods or packaging or it may be industrial design and also include layout design of integrated circuit, plant varieties and knowhow of the same, biodiversity, geographical indication, and among all these, fashion which is of recent origin.
One of the most important intellectual properties is Trademark and Service Mark. The manufacturer or supplier of goods ensures that although the goods produced by him are similar to those manufactured by others, their distinguishing marks are different. The importance of trademarks was recognized only after the Industrial Revolution which enabled large scale production, distribution of goods and publicity through different media. It is in this context that ‘trade marks’ play a very important role in the modern commercial market.
A Trademark is anything that is associated with goods or service for the purpose of recognition and identification of the same, so from this point a trademark can be something which identifies and recognises any product/goods, it mostly guarantees its quality, it advertises the product, and it creates an image of the product or service in the minds of the public, particularly the consumers or the prospective consumers of such goods or services. The marks associated with the goods or services come to acquire a reputation and goodwill around them. Trademark plays a very important role in the development of economy of any country. Trademarks establish goodwill between the source of a product or service and the consumers or the prospective consumer. Trademarks are an asset which forms the foundation of any business to the ultimate purchaser or the consumer and play an important role in the commercialisation and growth of industries.
The concept of trademark in this modern era has brought a transition in the law of trademark and is in a way a great challenge for the team drafting the legislation in a country. A trademark which is registered under the statute is called registered trademark, where as a trademark unregistered is called Common Law Trademark.
The definition and meaning of trademark, in recent times, is taking innovative and flexible form with the development taking place due to the creativity and intelligence of the people, for e.g. Sound is given the status of trademark though sound trademark is not defined by the Trademarks Act, 1999. The Trademark takes the form of non-conventional trademark like taste, shape, smell, texture, motion etc which is not conventional like word mark, logo, sign, symbol etc. In India the sound trademark is being popularly utilised to identify products.
Trademark is developing largely due to innovation and novel creation and people are trying to protect the same from infringement by remaining vigil and alert and safeguarding the same in different innovative ways, for instance, in a recent development, Trade Mark Registry, Mumbai, has registered the image of Taj Mahal Hotel in June 2017 and has given it a Trademark which is a ‘Landmark Registration’. This is the first time a structure in India has been registered; so also, the second building structure which got its trademark registered is the Bombay Stock Exchange Ltd. In June 2018, the Phiroze Jeejeebhoy Towers, which is a 28 storey building got a trademark.
A trademark provides protection to the owner of the mark by ensuring the exclusive right to use it to identify goods or services, or to authorize another to use it in return for payment. The period of protection varies, but a trademark registration can be renewed indefinitely on payment of additional fees.
Although registration of a trade mark is not compulsory, it is advisable to apply for registration, because registration provides a cost-effective way to preventing infringement, and also prevents others from appropriating and registering your trade mark. In addition, registration is a guarantee of immunity to infringement actions based on the registered trademarks of other parties. Internationally, India is a member of the World Trade Organization, Madrid. The protocol amongst G-20 Economies, India ranks 14th, which will help Indian trademark owners to register their trademarks at WIPO in the member countries by filing a single application and also allowing the other member countries to register their mark in India. There are number of conventions, agreements and treaties and so also enforcement system by the Government to protect Intellectual Properties like Adelphi Charter on Creativity, Innovation and Intellectual Property, TRIPS (Trade Related Aspects Of Intellectual Property Rights), DOHA declaration, Intellectual Property Organizations which are founded by treaty, Paris Convention for protection of Industrial Properties, WIPO (World Intellectual Property organization), Berne Convention for protection of literary and artistic work
The writer is an entrepreneur and holds a doctorate in intellectual property law. Email: vinodprosper@gmail.com
