IPR-UNIT-2
Trademarks
A trademark (also written trade mark or trade-mark) is a type
of intellectual property consisting of a recognizable sign, design,
or expression that identifies a product or service from a particular
source and distinguishes it from others.
A trademark owner can be an individual, business organization, or
any legal entity.
A trademark may be located on a package, a label, a voucher, or on the
product itself. Trademarks used to identify services are sometimes
called service marks.
Purpose and Functions of Trademarks
A trademark serves several essential purposes:
1.Distinguishing Goods and Services: A trademark is a symbol, slogan,
design, word, or combination of elements that identifies a party’s goods or
services and sets them apart from those of others.it helps consumers
recognize and associate specific products or services with a particular source.
2.Preventing Unfair Competition: Trademark law aims to prevent unfair
competition where companies use consumer confusion to gain an advantage.
For instance, if an independent diner used a golden, arched “M” as its logo, it
could confuse customers into thinking it’s a McDonald’s restaurant. Such
confusion violates trademark law.
3. Protecting Investment and Reputation: Trademarks safeguard
the owner’s investment and reputation. When consumers see a well-
known trademark, they expect a certain level of quality and
consistency. Trademarks help maintain this reputation by ensuring that
only authorized parties use the mark.
4. Assisting Consumers in Decision-Making: Trademark law assists
customers in making purchasing decisions. When they encounter a
recognized trademark, they can trust the quality and origin of the
associated product or service. For example, the iconic Nike “swoosh” or
the McDonald’s “golden arches” immediately convey familiarity and
reliability.
Functions of trademark
1. Product Differentiation Function
Trademarks serve as the basic means of achieving product or service
differentiation. The trademarks enable a customer to distinguish goods,
products or services in the market without confusion and make him/her
arrive at a decision on what to purchase.
For example: The advertisers of the brand ‘Surf’ seek to build an image
that the ‘Surf’ brand has qualities that cannot be replaced by any other
detergent and all the other detergents like ‘Ariel’ or ‘RIN’ possess
different quality or characteristics. A message is built up that the
customer is looking for the product ‘Surf’ and not just a detergent.
2.Identification of Source and Origin Function
One of the most important functions of a trademark is to serve as information to the
customers for identifying the origin or source of a product. The trademark guarantees the
identity of the origin of the trademarked services or goods to the consumer or end-user.
It enables the consumer to distinguish the trademarked goods or services from others
that have another origin without any confusion.
For example: The trademark ‘Brooke Bond’ identifies tea originating from a company
manufacturing tea and marketing it under that trademark.
3. Quality Function
A trademark ensures customers of the quality of the trademarked products or services.
Customers select goods or services known for their quality. Thus, trademarks help the
customers decide the products they need to purchase or the service they need to avail of.
Reputation and identification of quality are the key features of trademarks.
or example: The quality of tea sold in the packs trademarked as ‘Brooke Bond’ would be
similar, but they would be different from tea labelled with the trademark ‘Taj Mahal’.
4. Advertising function: Trademarks are used in marketing and advertising campaigns
to establish positive associations and brand recognition. The trademark or logos act as a
visual cue for the services and goods of a company and thus set it apart from its
competitors. Companies can achieve brand recognition successfully by using a logo or
slogan.
For example: The trademark of ‘Sony’ is associated with electronic items. Thus,
customers associate the trademark ‘Sony’ with a particular quality of a particular class
of goods. It advertises the product while distinguishing them from the products of Sony’s
competitors.
5. Creation of Image Function: Trademarks create an image of the product or service
they are associated with. Trademarks essentially function to create goodwill for the
company. The goodwill embodied in a trademark constitutes a company’s intellectual
property or asset. The prolonged usage of a trademark associated with a particular
business helps the business gain reputation and goodwill regarding its particular
trademark.
For example: The mark ‘M’ which represents the food items originating from the
American fast-food chain ‘McDonalds’, creates a reputation and image for food items
offered by it for sale in the market.
Acquisition of trademark rights
• A person may acquire rights in a trademark either by its use in the
course of trade in relation to certain goods and/ or service or by
registration under the Trade Marks Act, 1999.
• The rights in a trademark may also be acquired by assignment or by
inheritance.
• Judicial precedent in India has recognized the right of a prior user of a
trademark as a superior right, which also prevails over the registered
owner of a similar or identical trademark.
• If two or more similar or identical trademarks have been filed on the
basis of future use (also referred to as ‘proposed to be used'), the
trademark with the earlier application date is given priority.
Protectable subject matter
Any sign, or any combination of signs, capable of distinguishing the
goods or services of one undertaking from those of other undertakings,
shall be capable of constituting a trademark. Such signs, in particular
words including personal names, letters, numerals, figurative elements
and combinations of colors as well as any combination of such signs,
shall be eligible for registration as trademarks.
Where signs are not inherently capable of distinguishing the relevant
goods or services, Members may make registrability depend on
distinctiveness acquired through use. Members may require, as a
condition of registration, that signs be visually perceptible.
Trademark registration process in
India video class
https://youtu.be/ujXEETF0U0I
Thank you
