Among the very first activities that man indulged into, trade and commerce have undoubtedly been two of the most important ones. Even today, almost every democratic country, in its Constitution, expressly provides to its people the freedom to carry out any (lawful) trade, profession and to contract with any capable person. The reason for such strong protection is because the acts of manufacturing goods and conducting business in it have become an intrinsic part of human nature itself. Furthermore, a human being’s most precious asset is his / her identity. It is this unique identity that sets you apart from every other person who breathes on this planet. The same principle is applicable to man-made products which are often very similar to each other; they crave their own unique identity. So what’s in a name? – Everything.
A trademark (yes, I have finally come to the point) is a beautiful mix of these two concepts of human life: trade and identity. It is a unique word or mark or logo, which when applied to a manufactured item, speaks to the consumer of the origin of the product. For example, if you see a Mercedes logo on any car (even if you haven’t heard the name or seen the car before), you will instantly associate the origin of the car to Mercedes; such is the power of a trademark. Its supreme function is to ensure that it causes the consumers to distinguish the manufacturer’s product (like Coke) from every other similar good (like Pepsi). Essentially it’s a more sophisticated way of branding your cattle as well as your chattel.
Unlike patent and design, a trademark needn’t be novel or inventive; although invented words or marks are always encouraged by Comptroller of Patents and Trademarks (Main Man under these Statutes). The Trademark Act, 1999 is liberal with your choice for a trademark, providing only a few absolute, and some mild restrictions. Among other things, you will not be granted a trademark for words which describe the product itself; for example the TM Registrar will laugh out an application to trademark the word PERFECT for soaps (true story, minus the laugh) or the word CYCLE for a new range of cycles. Other than the above, your lawyer will strongly advise to refrain from using any trademark which is offensive to people belonging to any religion, caste, creed, race or ethnicity; keeping some moral principles never hurt too much.
As for the mark itself, it can be anything from a word, a name (like Haldiram’s), a slogan, abbreviations (like IBM), to a combination of colors, a unique packaging style, a picture or device, a label or logo; language is no bar, unless the word used is directly descriptive of the class of products. For the sake of convenience and administrative ease, the Indian TM Act has classified all goods (1 to 34) and services (35 to 45) into 45 different types (or classes).
The owner of a trademark is most often the person or company who manufactures the goods on which the trademark appears, as is the purpose of this IP. So the trademark in the Windows 7 logo is owned by Bill Gates’ Microsoft Corporation. In such a case, it is only the Microsoft Co. which has the right (as well as the power) to affix its logo or name on all the products and services which the manufacture and provide. Since the trademark is nothing but movable property (like shares or stocks), the corporation also reserves the right to grant a license (legal permit) to any other person or entity to make use of its logo or sell trademarked products.
So whenever any store or cyber-shop wants to sell any computer which has a Microsoft logo, it must take permission (license) form the Microsoft Co. to sell such computers. In case any person uses a trademark similar to the word Microsoft or its logo design on any tech products without obtaining such a license, then Microsoft can sue such a person for infringing its registered trademark.
In India, your trademark will be protected by common law even if it has not been registered; so if any person manufactures or sells computers called MACROSOFT, such a person can be sued by Microsoft for passing-off. This remedy is important for the consumer since continued use of MACROSOFT is meant to ride on (make profits) on the reputation of Microsoft, and is eventually bound to confuse average consumers who would continue buying fake products while believing them to be original Microsoft stuff.
Trademark occupies the largest chunk in any IP syllabus you will study from. The reason why it’s is so important is very obvious: it’s an extremely valuable financial asset. If I place before you two ways of earning quick cash in a fast food business, I am sure many among you will choose to start a McDonalds Franchise than to start a new chain from scratch. Just imagine the kind of revenue McDonalds must be making just by letting other people use its name! Watch the next and last episode of this season of The Pomegranate Series to find out what the IPR Cell has in store for the next season!
Ritvik M. Kulkarni
III BA LLB