Trademark Essay

4697 words - 19 pages

INTRODUCTION:

To protect the interest of consumers and safeguard reputation and goodwill of the proprietors of certain works used on goods, the Trade and Merchandise Marks Act, 1958 was enacted. It was a comprehensive piece of legislation dealing with registration and protection of Trade marks. It was a central unitary law applicable to the whole of the country. With the development in trade and commerce, globalization of trade and industry and need to encourage investment and transfer of technology and for simplification and harmonization of trade marks management systems, Trade Marks Act, 1999 was enacted repealing the Trade and Merchandise Marks Act, 1958, with the object to provide ...view middle of the document...

It is sufficient that the consumer can trust in a given enterprise, not necessarily known to him, being responsible for the product sold under the trademark.

The function of indicating the source as described above presupposes that the trademark distinguishes the goods of a given enterprise from those of other enterprises; only if it allows the consumer to distinguish a product sold under it from the goods of other enterprises offered on the market can the trademark fulfill this function. This shows that the distinguishing function and the function of indicating the source cannot really be separated. For practical purposes one can even simply rely on the distinguishing function of the trademark, and define it as “any visible sign capable of distinguishing the goods or services of an enterprise from those of other enterprises.”

1. CLASSIFICATION SYSTEM

Various kinds of Goods and services, which are classified according to the International Classification of goods and services, are covered under trade mark. Currently schedule IV of the Trade Marks Act, 1999 provides a list of such goods and services falling in different classes.

2. REQUIREMENTS FOR FILING TRADE MARK APPLICATION

Any person claiming to be the proprietor of a trade mark used or proposed to be used can apply for trade mark registration. Following are the requirements for filing trade mark application.

a. Name & Address of the Applicant Company / Person
b. Trademark / Logo (10 copies)
c. Class(es)
d. Description of goods / services
e. Original priority documents, if priority is claimed. (can be filed within two months from the date of filing in India).
f. Power of Attorney duly notarized (can be submitted later).

3. REGISTERATION PROCEDURE

An undisputed registration process would take around twelve to fifteen months involving phases a) Filing of TM Application, b) Examination Report and reply thereof, c) Hearings, if required, d) Acceptance before Advertisement, e) Publication in TM Journal, and f) Issuance of Registration Certificate. The registration process is further clarified though the following flow chart.

After the trade mark is published in the TM Journal any person can file opposition within four months from the date of publication. After hearing both the parties the Registrar of Trade Mark shall decide accordingly and register or reject the trade mark.


4. TERM & RENEWAL OF TRADE MARK

The term of a trademark is ten years. It can be renewed further after every ten years. The application for renewal has to be made within six month from the date of expiry of the trade mark.

5. LICENSING AND ASSIGNMENT

Trade Mark can be assigned or licensed in respect of all or portion of the goods or services for which they are registered. Assignment or License Agreements of Trade Marks must be made in writing and recorded with the Registrar of Trade Marks for its validity and enforcement.

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