In this article Perry4Law and Perry4Law Techno Legal Base (PTLB) would discuss the applicable trademark law of India.
The Trade Marks Act, 1999 (TMA 1999) and the corresponding Trade Marks Rules, 2002 (TMR 2002) regulate the legal framework pertaining to Trade Marks in India. The Preamble to the TMA 1999 explains the purpose of the Act to amend and consolidate the law relating to trade marks, to provide for registration and better protection of trade marks for goods and services and for the prevention of the use of fraudulent marks.
Some of the salient features of the TMA 1999 have been outlined in the Statement of Objects and Reasons annexed to the Trade Marks Bill. These are:
(a) Providing for registration of trade mark for services, in addition to goods;
(b) Registration of trade marks, which are imitation of well known trade marks, not to be permitted, besides enlarging the grounds for refusal of registration mentioned in clauses 9 and 11. Consequently, the provisions of defensive registration of trade marks are proposed to be omitted;
(c) Amplifications of factors to be considered for defining a well known mark;
(d) Doing away with the system of maintaining registration of trade marks in Part A and Part B with different legal rights, and to provide only a single register with simplified procedure for registration and with equal rights;
(e) Simplifying the procedure for registration of registered user and enlarging the scope of permitted use;
(f) Providing enhanced punishment for the offences relating to trade marks on par with the Copyright Act, 1957 to prevent the sale of spurious goods;
(g) Providing an Appellate Board for speedy disposal of appeals and rectification applications which at present lie before High Courts;
(h) Transferring the final authority relating to registration of certification trade marks to the Registrar instead of the Central Government;
(i) Providing enhanced punishment for the offences relating to trade marks on par with the present Copyright Act, 1957, to prevent the sale of spurious goods;
(j) Prohibiting use of someone else’s trade marks as part of corporate names, or name of business concern;
(k) Extension of application of convention country to include countries which are members of Group or union of countries and Inter-Governmental Organisations;
(l) Incorporating other provisions, like amending the definition of “trade marks; provisions for filing a single application for registration in more than one class, increasing the period of registration and renewal from 7 to 10 years; making trade mark offences cognizable, enlarging the jurisdiction of Courts to bring the law in this respect on par with the copyright law, amplifying the powers of the Court to grant ex parte injunction in certain cases and other related amendments to simplify and streamline the trade mark law and procedure.
The TMA 1999 is in conformity with two major International Treaties on the subject, namely The Paris Convention for Protection of Industrial Property and TRIPS Agreement to both of which India is a signatory.
All the provisions of the Trade Marks Act, 1999 and the Trade Marks Rules came into effect w.e.f. 15.9.2003 as per notification No. S.O. 1048(E) dated 15.9.2003.