The trademarks register came into existence by virtue of trademarks act 1940, in which all the trademarks registered till 25 November, 1959 were entered. On 25 November 1959, when the Trade and Merchandise Marks Act, 1958 came into force. The register was divided into two parts namely, part A and part B. All the trademarks on the register on the date of enforcement of the 1958 Act were incorporated in part A of the register.
Registration Not Mandatory
A trademark comes into legal existence in most of the countries including India, by use alone, on the goods or services as such irrespective of registration. If a trademark at the time of registration application is not already used but is proposed to be used then the trademark may be said to be the creation of registration. In such cases, a proprietor may enjoy rights in a non existent trademark for 5 years from registration without use of the trademark. If at the time of registration he had an intention to use the trademark.
Legal Concept and Definition of Trademark
A trademark must fulfill the conditions mentioned in the definition of the trademark stated in section 2(1). It would not quality to be a trademark with in the meaning of the Act. The 1999 Act envisages of trademark registration and not of a mark simpliciter, which is either in use or which is proposed to be used on the goods or services. According to the definition, if a trademark does not possess distinctive character, it is not a trademark.
A proposed trademark for registration must first be a trademark. It should not be hit by any of the grounds for refusal. Thus, the basic requirement for registration as a trademark is that it compiles with all the factors listed in section 2 (1).
Should be used and should Identify Goods/Services
A trader acquires a right of property in a distinctive mark by using it openly or identifying it with his goods or services, irrespective of the length of such user and extent of its trade.
Registration under the statute does not confer new rights or greater rights for the trademark that what already exists in the common law. A trademark exists independently for registration which merely affords further protection under the statute. Common law rights which vest by use itself an unaffected, so much so that an unregistered trademark may proceed against a registered trademark and may successfully obtain injunction against a registered trademark in the market, inspite of lack of registration of petitioner’s mark also the termination of opposition to registration by the petitioner at the time of registration. The requirements and trademarks registration procedures in India is uniform for all applicants whether Indian or Foreign.
Purposes of section 9
The basic philosophy of section 9(1) is that a trader would not be granted a statutory monopoly through registration of a word or mark, which another trader might legitimately with no use. A competitor should be entitled to make bona fide use of the word or mark, to describe his goods or the place of manufacture.
Section 9 (1) is thus to be read together with –
(a) Section 30 which enacts Limits on effect of registered trademark.
(b) Section 34 stating “Saving for vested rights”
(c) Section 35 having the heading “saving for use of name, address or description of goods or services and
(d) Section 36 providing “saving for words used as name or description of an article or substance or service.
Requisites for Registration
The 1999 act does not expressly list any requisites for registration. As stated in the concept of trademark, the requirements for registration. The definition of trademark have converged. The 1958 act gave details about registrable words and the kind of words that lacked distinctive character or the treatment to be given to the invented or ordinary words. In the 1999 act the guidance is very little.
Refusal of Registration
The legislation in most of the countries now provides two types of grounds for refusal of registration of trademarks namely :
(a) Absolute grounds for refusal and
(b) Relative grounds for refusal
The same classification has been adopted in India. These two types of grounds for refusal are given in section 9 and 11. The conditions are non-discriminatory and are to be fulfilled by every person desirous of registering his trademark.
Absolute grounds are grounds which are germane to the trademark, as to its structure and operations in the market. Relative grounds mentioned in section 11 oversee that the mark seeking registration does not conflict with marks previously operating whether registered or unregistered.
Section 17 now play a crucial role in registration proceedings, since the exclusivity is only in distinctive matter together with distinctive matter, thus the registrar or intellectual property appellate board (IPAB) may registration liberally.
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