[mks_dropcap style=”square” size=”52″ bg_color=”#ffffff” txt_color=”#dd3333″]A[/mks_dropcap] trademark is a mark, logo or trade name which identifies a business to its customers. It is generally words, phrases, logos and symbols used by producers to identify their goods. However, shapes, sounds, fragrances and colors may also be registered as trademarks. The history of trademark dates back to one thousand B.C. During that time, the craftsmen engraved their names on the piece of art made by them just to prove their authenticity over the work done. But today it is used to distinguish between the products made by two unlike companies. The different logos, design, symbols are made in order to attract the consumers. Trademark helps the owner to prevent the use of similar of identical signs by competitors if such trademark can lead confusion. A trademark is different from patent and copyright. Patent protects an invention whereas copyright protects an artistic and literary works.
Types of trademark available are:
- Names, including any surname
- an invented word or any arbitrary dictionary word
- letters or any numeral or any combination
- shape of goods or their packing
In India, the classification system prevails where goods and services has been classified into classes of registration. This classification made by WIPO namely the International Classification of Goods and Services which consists of 34 classes of goods and 8 classes of services. And this classification is followed by many countries of the world. The trademark provides an exclusive right to the proprietor and any infringement will cost to the person who has infringed the right in respect of any goods and services. Though registration of trademark is not compulsory in India but if it is done it protects the person and also provides legal remedies. Registration is a legal process provided under for under Trade Mark Act, 1999.
A trademark infringement hampers the reputation of the owner as well as his business with devastating consequences. For this purpose remedies are provide in order to mitigate the expenses bear by the owner. It is a valuable part of a daily business and informs the world about the product and its services. In order to minimize the damages suffered by owner, it is necessary to prove that genuinely his right has been infringed.
- It is very necessary to be proved by the owner that the goods and services provided by him must be associated with goodwill which is spoiled by some other person who has misused and infringed the right of owner. Goodwill is thus the benefit and advantage of a name and get-up, and it is the attractive force which brings in business. Goodwill is not visible but is made in the mind of customers which allows them to make benefit out of that services. Therefore, establishing a goodwill on the part of plaintiff in his business or his goods or services is necessary to which the trade or public will be led to associate the defendant’s activities. In one of the decided case Durga Dutt Sharma vs. Navaratna Pharmacy Laboratories where it was held that the onus to prove infringement is on plaintiff.
- False representation by the defendant to attract more customers is a punishable offence. In Spalding vs. Gamage, it was explained by the Lord that: “Where the plaintiff and defendant were not competing traders in the line of business, a false suggestion by the defendant that their business were connected with each other would damage the reputation and thus the goodwill of plaintiff’s business.”
- Damages plays an important role in determining how much loss is suffered by the owner. It is result of erroneous step taken by the defendant which was against the rights of the plaintiff. It degrades the value of the goods produced by the original company.
Remedies are available to those whose right has been infringed. Generally, damages are the most common remedy but apart from that there are various other remedies are available to mitigate the losses incurred by the owner.
- Injunctions are provided by the court to stop the use of trademark by the infringer. It is a kind of civil remedy and its main purpose is to prohibit the person whose act is unjust and ruing the reputation of the other by unauthorized use of the trademark. There are mainly two types of injunction, permanent and temporary injunction. Former is for permanent restraining whereas latter is for some specific time.
- Another remedy is the unfair competition law which provides for the trademark dilution. The main element of the infringement is the confusion which arises between the two products. However, in some cases where the problem is nowhere related to confusion but is about unfair use of the trademark which causes damage to the owner. Thus, the law of unfair trade competition is a wide ranging concept and basically helps to prohibit the practice which society seems to be unfit. But with the changing world, changes are being made. In one of the recent judgment of Samsung Electronics Co. Ltd. vs. Champion computers where parallel import has become a boon and has also created a problematic Court and made certain changes in the trademark law. This bench has overruled the judgment given by single bench stating that parallel imports are not authorized under the India trademark law. But the division bench clearly upheld that parallel import do not infringe the right of proprietor and parallel importation is valid under the Trademark Act, 1999.
- Monetary compensation is also granted to compensate the trademark owner. It can also be increased up to 3 times if it is as per the laws laid down. Even the court has the discretion to award to the owner and other expenses incurred by the owner for bringing up the action. In Time Incorporated vs. Lokesh sriastav4 in this court awarded both compensatory damages and punitive damages for infringement of the trademark Time.
Therefore, the protection of trademark is important not only for the benefit of business but also for the protection of consumer from fraud and any conduct which violates the right. The Trademarks Act, 1999, the law provides for a better protection of trademarks, the fact that the trademark law provides protection to trademarks has come out to be a reality. The present Act expressly recognizes the common law remedy and thus saves both the registered and unregistered trademarks from being misused.