Trade Mark

A trade mark is a visual symbol in the form of a word, a device, or a label applied to articles of trade or commerce with a view to indicate to the public that they are the goods manufactured or otherwise dealt in by a particular person as distinguished from similar goods manufactured or dealt in by any other persons. A person who sells his goods under a particular trade mark acquires a sort of limited exclusive right to the use of the mark in relation to those goods. Such a right acquired by use is recognized as a form of property in the trade mark, and it is protected under the law of Intellectual Property Rights. A person can also acquire a similar right over a trade mark, not so far used but only proposed to be used, by registering it under the Trade Marks Act 1999.

Trade Marks Act 1999 states that;
(1) Trade mark must be a mark which includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colors or combination thereof [S. 2(1)(m)]
(2) The mark must be capable of being represented graphically
(3) It must be capable of distinguishing the goods or services of one person from those of others.
(4) It may include shape of goods, their packaging and combination of colors.
(5) It must be used or proposed to be used in relation to goods or services.
(6) The use must be for the purpose of indicating a connection in the course of trade between the goods or services and some persons having the right as proprietor to use the mark.
(7) The right to proprietorship of a trade mark may be acquired by registration under the Act or by use in relation to particular goods or services.
(8) The right of proprietorship acquired by registration is a statutory right which requires no actual user but only an intention to use the mark. On the other hand the right acquired by actual user in relation to particular goods or services, is a common law right which is attached to the goodwill of the business concerned.

A registered trade mark can be protected against unauthorized use by others by an action for infringement. This is a statutory remedy. An unregistered trade mark can be protected against unauthorized use by others by an auction for passing off which is a common law remedy.

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