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Intellectual Property Rights – India – Part 3

Trade Marks

India is governed by the Trade Marks Act, 1999. A trademark is any distinctive word/s, symbol, emblem, name, logo, slogan, letters, drawings, pictures, colours or combination of colours or trade dress that a company uses to identify the origin of a product or to distinguish it from other goods in the market. It may also be a combination of all the aforesaid elements. It is what the company wants itself to be identified with…….THE COMPANY’S IDENTITY. Scents and Smells can also be registered as trademark. Sounds can be used as trademarks as well as shapes and configurations of products. E.g. Coca Cola bottle.

Although in some countries and in some situations a mark may be protected without registration, it is generally necessary that for effective protection a mark be registered in a government office. If a trade mark is registered, no person or enterprise other than its owner or authorized users can use it, infringement actions can be taken against them otherwise.

Trade marks rights can last indefinitely, if the trade mark continues to be used. In India, the only criteria is that it has to be renewed every 10 years.

However, the exception is – Trademark rights can be diminished, eroded or lost if the owner does not continuously use the mark, or if the owner does not actively enforce his rights against known infringers, or if the trademark loses its significance in the market by becoming generic. Generic is a part of everyday language and hence becomes common. An owner may lose his trademark right if the mark becomes a generic name e.g. – Aspirin, escalator, yo-yo, cellphone etc. These were once enforceable trademarks but not any more now as they are common words in the English language. Why resort to trademark? To prevent others from using the same or confusingly similar trademark for the same or similar product. To prevent others from using confusingly similar marks, stripping off the identifying source and replacing it with different marks. Mere registration of a domain name does not confer trademark rights. You have to use your domain name to identify your goods or services to acquire trademark rights.

Trade Marks that cannot be registered

The use of a mark which is likely to deceive or cause confusion, contrary to any law for the time being in force, comprising or containing scandalous or obscene matter, comprising or containing any matter likely to hurt the religious susceptibilities of any class or section of the citizens of India, which would be disentitled to protection in a court of law which is identical with or deceptively similar to a trademark already registered in respect of the same goods or goods of the same description, a word which in the accepted name if any single chemical name of chemical compound in respect of chemical substances and marks prohibited under the Emblems and Names Act cannot be registered. Trade marks that have been register already or trade marks that are pending before the Registry which are similar to the mark it seeks to register may be searched at the Registry situated in Kolkatta, Delhi, Mumbai, Chennai and Ahmedabad.

Ingredients of Trademark

The name should suggest the use and nature of the product or service and should be easy for the customers to remember. Present a trademark in such away that it stands out. Use bold letters, colours, capital letters, quotation mark and use the trademark consistently. Do a trademark search to determine whether the name is available for registration. It is common ground for people to put in a lot of time and money into developing a name only to find out later that somebody else has a right to it. It is very frustrating, hence conduct a thorough search first.

Trademarks should be used. If it sits idle for more than 4 yrs then it is redundant. Not only should it be used but it must be used properly. Use the appropriate notice symbols – TM, SM, ® – this shows that the marks belong to you.

Madrid Protocol

The Madrid Protocol covers trademark matters, and facilitates registration of trademarks in member countries by allowing proof of registration in the home country to be deposited in a Central Registration Bureau. At the time of writing this book India was not a member of this protocol.

Industrial Design

Governed by the New Designs Act, 2000 in India. Features of shape, pattern or configuration or ornament applied to an article. This must appeal to the “eye”, new and be industrially applicable.

Registration is required and the duration of Protection is not less than 10 years. The International treaty which governs New Design is the Paris Convention which India is a member.

Integrated Circuits

This is similar to industrial design and used for integrated circuits.

Trade Secrets or Confidential Information

Trade secrets are also known as CONFIDENTIAL INFORMATION. It is information, generally not known, which is valuable to the owner and kept in strict confidence or in secrecy. In recent times, trade secrets are deployed in keeping “Technology” secrets in this technology era.

Examples are Customer lists, Designs, Instructional Methods, Manufacturing processes, Formulas for producing products, recopies, Invention and processes that are not patentable and Technical know-how.

Trade secret protection attaches automatically when the information is kept secret by the owner. The owner has the right to prohibit others from misappropriating and using the trade secret. Duration of protection is as long as the information is valuable to the owner and is kept in secrecy. Protection will be lost if the owner fails to take reasonable steps to keep the information secret.

This covers all the avenues available to you as an Entrepreneur to protect your idea. Generally

The legal regimes establishing ownership and control of intellectual property are applied on a territorial basis that is, they are created by, and apply only to the country of origin. Accordingly, in order to protect your intellectual property in countries outside your own country, you must establish such protection in each country

You might think that this would require an examination of each country’s laws to determine the existence and scope of protection in that country. Fortunately, many countries adhere to established international conventions and treaties mentioned above.

Many of these conventions and treaties are administered through the offices of the World Intellectual Property Organization in Geneva, Switzerland (

Important bodies

WIPO – World Intellectual Property Organization

TRIPS (Trade-Related Aspects of Intellectual Property Rights) by GATT (General Agreement on Tariff and Trade) – TRIPS Agreement requires all GATT members to provide at least a baseline level of protection and enforcement for patents, trademarks and copyrights.

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