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GLOBAL IPR LAW CONSULTANTS (INDIA)
[IP Division of Global Law Consultants (India)]
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Trademarks

GLOBAL IPR LAW CONSULTANTS (INDIA)

The Intellectual Property Rights like Patents, Trademarks, Copyrights etc. are protected under various National Laws of India. With the formation of WTO and India becoming a party to TRIPS agreement, Indian Government is committed to amend various national laws to make it conformity with International Commitments. The Intellectual Property Rights in India can be protected under various laws:

Trademarks:

To meet international commitments, Indian Government has enforced with effect from September 15, 2003, The Trade Marks Act 1999 and Trade Marks Rules 2002. The main features of new trademarks act have been described at the end.

In India, you can protect a trademark for goods or services, on the basis of either use or registration or on basis of both elements. A registration of a trademark is always granted only for a limited period of time, but it is renewable without restriction in time. Therefore, a trademark may be protected indefinitely. The trademark signifies the quality of product and services of the trademark owner, it is in the interest of corporations or individuals to get the trademark registered in India to exclude others from using the same or deceptively similar trademark in India

With effect from September 15, 2003, Trade Marks Act, 1999 have been enforced, old Trademarks and Mechandising Act, 1958 has been repealed. New Trade Marks Act 1999 is TRIPS compliant and more in conformity with US Federal and State Trade Marks laws than it was earlier. Service Marks are now registrable in India.

The salient features of Indian Trade Marks Act 1999 are given below.

Salient Features of New Indian Trade Marks Act 1999
(Enforced with effect from September 15, 2003)

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S.No.

Indian Trade Mark Act 1999

Repealed Trade and Merchandise Act 1958

1.

Definition of Trade Mark broadened to include goods and services.  Shape of goods, their packaging and combination of colours included,

Earlier only Trade Marks in relations to goods only were registrable

2

Service marks also registrable

 

3.

Well Known Trade Marks defined for strong protection. Dilution concept recognized.  Registration may be refused- if mark is a reproduction or imitation of a well-known mark even in respect of different goods or services.

 

4

No provision for smell or sound marks

 

5

Term of registration of Trade Mark made 10 years with provision for renewal

Earlier it was 7 years, with provision for renewal

6

Scope of infringement of registered trademark broadened. Phonetic, Visual, Meaning similarity recognized

 

7

Comparative advertisement permitted

 

8

Filing of suit for infringement simplified.

 

9

Non-registered Licensing of registered Trade Mark permitted-Permitted User

 

10

Assignment of unregistered trademark without goodwill of business possible

 

11

Provision for registration as Registered User simplified

 

12

Creation of Intellectual Property Boards to hear appeals from the decisions of Registrar of Trademarks (or Controller of Patents)

This is similar to TTAB and BPAI in USA

13

Scope of Infringing Activities widened. Stringent Measures for enforcement of trademark rights e.g. enhanced punishment, increased imprisonment term, increased fine, direct complaint before police officer, search and seizure by police, restraining infringer from disposing of his assets

 

14

Single Application of same mark for multiple classes

Earlier separate application was to be submitted for each mark and for each class.

15

 Registration of Collective Marks for AOP

 

16

Criteria for registrability of Trademark simplified

 

17

Marks not registrable elaborated

 



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