A trademark is a mark legally registered which is used to claim exclusive rights of products or services by its owner. A trademark is associated as a distinguished entity with a person or a thing. A trademark owner can be an individual, business organization or any legal entity. Trademark owners can be owned and also be licensed. A good example of a popular trademark is Coca Cola’s wave design that is unique to them. Thus, it can be anything like a graphical representation, a tagline, registration number, a company logo, etc.
In India, trademarks are protected both under statutory law and common law. The Trade Marks Act, 1999, which has replaced the 1985 Trade Marks Act, came into effect on September 15, 2003 and is in compliance with the obligations as set forth by Trade-Related Aspects of Intellectual Property Rights (TRIPS). The Indian Trade Marks Act allows for the registration of service marks and three-dimensional marks as well. India follows the NICE Classification of goods and services, which is incorporated in the Schedule to the Rules under the Trade Marks Act. A Trade Marks Registry had been established for the purposes of the predecessor Act, which continues to function under the present Act. The Trade Marks Registry is under the charge of the Registrar of Trademarks. The head office of the Trade Marks Registry is in Bombay (Mumbai) and its branches are at Calcutta (Kolkata), Delhi, Madras (Chennai), and Ahmedabad. The territorial jurisdiction of each office has also been allocated.
In addition to trademarks, certification marks can also be registered under the TM Act. They are given for compliance with defined standards, but are not confined to any membership. Such marks are granted to anyone who can certify that the products involved meet certain established standards. The well known “ISO 9000” quality standard is an appropriate example of a widely recognized certification mark.
Also, collective marks, registrable under the Trade Marks Act, can be owned by any association. The members of such associations are allowed to use the collective mark to identify themselves with a level of quality and other requirements and standards set by the association. Marks used by associations representing accountants, engineers or architects are significant examples of collective marks.
Under the Act, the term ‘mark’ defined under Section 2(1)(m) includes ‘a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or, combination of colors, or any combination thereof.’ As implied, the list of instances of marks is inclusive and not exhaustive. Given that effect, any mark which is capable of being ‘graphically represented’ and is indicative of a trade connection with the proprietor is entitled to get registered as a trademark under the Trade Marks Act. This interpretation opens the scope of trademark protection to unconventional trademarks like sound marks provided they satisfy the ‘graphical representation’ test and are not prohibited under Section 9 and 11 of the Act. India’s Trade Mark Registry now recognizes “unconventional trademarks” and has extended the trademark protection to sound marks. India’s first “sound mark” was granted to Sunnyvale, California-based Internet firm Yahoo Inc.’s three-note Yahoo yodel by the Delhi branch of the Trademark Registry on 18th August, 2008. It was registered in classes 35, 38 and 42 for a series of goods including email, advertising and business services and managing websites.