Indian trademark law
statutorily protects trademarks as per the Trademark Act, 1999 and also under
the common law remedy of passing off. Statutory protection of trademark is
administered by the Controller General of Patents, Designs and Trade Marks, a
government agency which reports to the Department of Industrial Policy and
Promotion (DIPP), under the Ministry of Commerce and Industry.
The law of trademark
deals with the mechanism of registration, protection of trademark and prevention
of fraudulent trademark. The law also provides for the rights acquired by
registration of trademark, modes of transfer and assignment of the rights,
nature of infringements, penalties for such infringement and remedies available
to the owner in case of such infringement.
The law of trademark
in India before 1940 was based on the common law principles of passing off and
equity as followed in England before the enactment of the first Registration
Act, 1875. The first statutory law related to trademark in India was the Trade
Marks Act, 1940 which had similar provision like the UK Trade Marks Act, 1938.
In 1958, the Trade and Merchandise Marks Act, 1958 was enacted which
consolidated the provisions related to trademarks contained in other statutes
like, the Indian Penal Code, Criminal Procedure Code and the Sea Customs Act. The Trade and Merchandise Marks Act, 1958 was
repealed by the Trade Marks Act, 1999 and is the current governing law related
to registered trademarks. The 1999 Act
was enacted to comply with the provisions of the TRIPS. Though some aspects of
the unregistered trademarks have been enacted into the 1999 Act, but they are
primarily governed by the common law rules based on the principles evolved out
of the judgments of the Courts. Where
the law is ambiguous, the principles evolved and interpretation made by the
Courts in England have been applied in India taking into consideration the
context of our legal procedure, laws and realities of India.
According to Section
2 (zb) of the Trade Marks Act, 1999, “trade mark means a mark capable of being
represented graphically and which is capable of distinguishing the goods or
services of one person from those of others and may include shape of goods,
their packaging and combination of colors ” A mark can include a device,
brand, heading, label, ticket, name, signature, word, letter, numeral, shape of
goods, packaging or combination of colors or any such combinations.
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