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What are trademarks? Trademarks are a type of intellectual property right. Intellectual property rights enable individuals to retain ownership of their innovative product and creative activity. Because intellectual property was discovered through the efforts of human labor, it is restricted by a number of registration and infringement fees. A trademark is a name, word, or sign that distinguishes one company's goods from the goods of other companies. Marketing goods or services becomes much easier with a trademark because product recognition with the trademark is assured and simplified. People are more influenced by a distinctive trademark that reflects the product's quality. A trademark can be a logo, a picture mark, or a catchphrase.

A trademark is a marketing tool that helps a company's financing. A trademark is not always a brand, but a trademark is always a brand. There is sometimes a misunderstanding between a trademark and a brand. The brand name can simply be a symbol or logo, whereas the trademark is a distinguishing sign or indicator in a business organization because it has a broader implication than brands. The owner has the right to prevent another competitor from using his mark or sign. Trademarks, Copyright Act, Patent Act, and Designs Act are all examples of intellectual property.


Prior to 1940, trademark law in India was based on the common law principles of passing off and equity that were followed in England prior to the enactment of the first Registration Act, 1875. The Trade Marks Act, 1940, was India's first statutory trademark law, and it included provisions similar to the UK Trade Marks Act, 1938. The Trade and Merchandise Marks Act, 1958 was enacted in 1958, and it consolidated trademark provisions from other statutes such as the Indian Penal Code, Criminal Procedure Code, and the Sea Customs Act.

The Trade and Merchandise Marks Act of 1958 was repealed by the Trade Marks Act of 1999, which is now the governing law for registered trademarks. The 1999 Act was passed in order to comply with the TRIPS provisions. Though some aspects of unregistered trademarks have been incorporated into the 1999 Act, they are primarily governed by common law rules based on principles developed from Court decisions. Where the law is ambiguous, the principles developed and interpretations made by English courts have been applied in India, taking into account the context of Indian legal procedure, laws, and realities.


In India prior to 1940, there was no trademark law. A number of trademark infringement issues arose, which were resolved under Section 54 of the Specific Relief Act, 1877, and registration was adjudicated under the Indian Registration Act, 1908. To address these issues, the Indian Trademark Act was enacted in 1940. Following the implementation of the trademark law, there was an increase in demand for trademark protection due to significant growth in trade and commerce. The Trademark and Merchandise Act, 1958, replaced the Trademark Act. It improves trademark protection and prevents the misuse or fraudulent use of marks on merchandise. The Act provides for trademark registration so that the owner of the trademark can obtain a legal right to use it exclusively.

The government of India replaced the previous Act with the Trademark Act, 1999 in order to comply with TRIPS (Trade-related aspects of intellectual property rights) obligations recommended by the World Trade Organization. The purpose of the Trademark Act is to provide trademark users with protection, to direct the conditions on property, and to provide legal remedies for the enforcement of trademark rights. The Trademark Act of 1999 grants the police the authority to arrest in cases of trademark infringement. The Act provides a comprehensive definition of the commonly used term "infringement." The Trademark Act stipulates punishments and penalties for violators. It also lengthens the time it takes to register a trademark, as well as the registration of a non-traditional trademark.

India, as a common law country, follows not only codified law but also common law principles, and as such allows for infringement and passing off actions against trademark infringement. The Trade Marks Act, Section 135, recognizes both infringement and passing off actions.


A trademark identifies the product's owner. A trademark can be used under any authorized product agreement; examples of trademarked goods names include the iPod and the Big Mac. Company logos such as McDonald's Golden Arches and McDonald's "I'm lovin' it." Apple, McDonald's, and Dolce & Gabbana are examples of well-known brands. Trademark piracy is defined as the use of a trademark by unauthorized or illegal means in trading. If a trademark is infringed, the owner of the registered trademark can take legal action, whereas the only option for an unregistered trademark is passing off.

Many countries, including the United States, Canada, and others, accept trademark policies, so the master of the product has the right to take action to protect their trademark. The owner of a registered trademark has a greater legal right to protection than the owner of an unregistered trademark, according to a common misconception about trademarks.

The Supreme Court upheld the concept of non-physical trademark usage in the case of Hardie Trading Ltd. v. Addison Paint and Chemicals Ltd. The Supreme Court provided a broader interpretation of trademark usage, ruling that it could be non-physical and that there were no grounds to limit the user's use on commodities or the sale of commodities bearing the trademark.


Trademarks protect the owner by granting them the exclusive right to use a trademark to identify goods or services or to allow others to use it in exchange for payment. It is a tool for the registered proprietor to use to prevent others from using the trademark illegally. The rights conferred by registration are defined in Section 28. The registration of a trademark is valid if the right is granted to the certified owner of the trademark, the owner has the exclusive right to use the trademark in relation to the goods or services for which the trademark is registered, and the holder of the trademark has the right to claim maintenance in the event of trademark infringement.

Where more than two people are certified proprietors of trademarks that are identical or nearly identical to each other. The exclusive right to use each of those trademarks shall not be expected to be taken by one of those persons as against other persons only by registration of the trademark, except if their own rights are related to any conditions or limitations entered on the register, but each of those persons has the same rights as against other persons.


Any person claiming to be the owner of a trademark or claiming to have used it in the future may apply in writing to the appropriate registrar in the prescribed manner. The application must include the name of the goods, the mark, and the services, the class of goods and services in which it falls, the applicant's name and address, and the duration of use of the mark. In this context, a person is an association of firms, a partnership firm, a company, a trust, a state government, or the federal government.


Trademark is designated by:

  • ™ (™ is used for an unregistered is used to promote or brand goods).

  • ℠ (used for an unregistered service is used to promote or brand services).

  • R (letter R is surrounded by a circle and used for registered trademark).


Under the Trade Marks Act, both civil and criminal remedies are available in the event of infringement or passing off.

Infringement of a trademark is a violation of the registered proprietor's exclusive right to use the trademark. Infringement of a trademark occurs when a person, who is not a permitted user, uses an identical/similar/deceptively similar mark to the registered trademark without the permission of the registered proprietor of the trademark. However, it is important to note that Indian trademark law, which is based on common law principles, protects the vested rights of a prior user against a registered proprietor.

Passing off is a common law tort that is used to protect unregistered trademark rights. Passing off occurs when party A's reputation in its trademark is misappropriated by party B, such that party B misrepresents itself as the owner of the trademark or as having some affiliation/nexus with party A, thereby harming party A's goodwill.

In India, registration of a trademark is not required in order to pursue a civil or criminal action for trademark infringement. In India, a combined civil action for trademark infringement and passing off can be filed. Infringement of a trademark, for example, is a punishable offence, and infringers can face criminal charges. Such enforcement mechanisms are expected to strengthen trademark protection in India and reduce trademark infringement and contravention.


In a suit for infringement or passing off, a court may usually grant permanent and interim injunctions, damages or account of profits, delivery of the infringing goods for destruction, and the cost of the legal proceedings. Ex parte or after notice, an interim injunction order may be issued. The suit's interim reliefs may also include an order for:

  1. Appointment of a local commissioner, similar to a "Anton Pillar Order," for search, seizure, and preservation of infringing goods, account books, and inventory preparation, and so on.

  2. Restricting the infringer from disposing of or dealing with the assets in a way that may jeopardize the plaintiff's ability to recover damages, costs, or other monetary remedies that may be finally awarded to the plaintiff.


An aggrieved party may file an application with the Registrar of Trademarks or the Intellectual Property Appellate Board (IPAB) for cancellation or variation of the trademark registration based on any contravention or failure to observe a condition entered on the Register in relation to the trademark. The application for rectification can also be filed for the removal of an entry made in the Register without sufficient cause or that is incorrectly remaining on the Register, as well as for the correction of any error or defect in any entry in the Register.


Service mark

A service mark is any symbol, name, sign, device, or word that is used in commerce to identify and distinguish one provider's services from those of others. Service marks do not cover tangible goods, only the provision of services. A service mark is expected to play an important role in the promotion and sale of a product or service. A product is identified by its service mark, which is also referred to as a trademark. In everyday services, service marks are used:

  • Sponsorship

  • Hotel services

  • Entertainment services

  • Speed reading instruction

  • Management and investment

  • Housing development services

Collective mark

A collective mark is used to identify the source of goods or services by employees and a collective group, members of a collaborative association, or another group or organisation. A collective mark is a mark that is used for goods and services as well as a group of organizations that share similar characteristics. This mark is used by more than one person who is acting in a group organisation or legal entity to divide the various goods or services. There are two types of collective marks for distinguishing one's goods or services from others of a similar nature:

  • The collective mark denotes that the marketer, trader, or individual is a member of the specified group or organisation. CA, for example, is a collective trademark used by the Institute of Chartered Accountants.

  • The collective trademark and collective service mark are used to identify the product's origin or source.

A collective trademark is used by individual members of an organization's group but is registered as a whole group. CA is the title or mark given to a member of the Institute of Chartered Accountants. The group of associations may use that collective mark. The Trademark Act of 1988 was amended to include this provision.

Certification mark

A certificate mark verifies or confirms matter by assuring that some act has been performed or some judicial formality has been met. A certification mark indicates certain qualities of goods or services for which the mark is used, as defined in the Trademark Act of 1999. A certification trade mark is one that is capable of identifying the goods or services in connection with which it is used in commerce and is certified by the owner of the mark in terms of source, body, mode of manufacture of goods or assistance, quality, accuracy, or other characteristics.

Those goods or services that are not certified or registrable as such under this Act, in respect of those goods or services in the name of that person as the proprietor of the certification trade mark. The certification mark is registered in accordance with the Trademark Act of 1999. The product must be competent to certify in order to be registered.


Intellectual property reflects the idea that its subject matter is the result of the mind or intellect. It can be traded, purchased, given, and reserved because it is the result of a productive and creative mind. All of this is possible, but there are issues that must be addressed. Trademarks are very important aspects of Intellectual Property, so trademark protection has become essential in the modern day because every creator of a good or service will want his mark to be unique, eye-catching, and easily distinguishable from others.

Designing a mark like this is difficult, and when the mark is infringed upon, the producer faces the greatest difficulty. Capital protection is critical, and there should be a step toward Global Intellectual Property Order; if there is no IPR protection, inventive activity will cease. The purpose of intellectual property protection is to encourage creativity and discovery while preventing the exploitation of inventions.

Public policy here is aimed at preserving an intellectual property system that promotes innovation through protection initiatives while ensuring that this does not come at the expense of societal interests. In this sense, the World Intellectual Property Organization's challenge would be to include public policy effects in applications conducted with developing countries, such as raising awareness of flexibilities in existing international intellectual property treaties.

By Riddhi Patni

First year student of B.A.LLB. (Hons).

Maharashtra National Law University Aurangabad

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