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.
