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by Rajen Kumar

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Knowledge Kit

All About TRADE MARKS

Mar 2009

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A trade mark may include the shape of goods, their packaging and combination of colours. As per Section 2(1) (m), a mark includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof. Thus, no kind of symbol is excluded from being considered as a trademark if it can be represented graphically and has the capacity to link goods/services to their source.

Why Trade Marks?

The public policy objective sought to be fulfilled through the trademark law is that of consumer protection. A trademark is to serve as a badge of origin, so that the public is not misled as to the origin or quality of a product or service. Further, trademarks add value to an enterprise in different ways. They form an integral part of the goodwill of a business, improve market share of a company, allow it to gain royalties through licensing, justify corporate valuation in mergers and acquisitions, support strategic alliances and co-branding opportunities and more.

How to Chose a Trade Mark?

Given the importance of trademarks, it is advisable to adopt a mark which is attractive from the sales aspect and legally protectable. Common sense dictates that one should adopt a mark which is easy to remember and spell. While it is tempting to select a descriptive mark because the goods can be easily recognized. These are weak marks. The following shows a range of weak to strong marks from a legal standpoint:

Spectrum of Distinctiveness

Generic marks refer to a category of goods instead of those of a particular company and do not perform the basic source identifying function. For instance, automobile for cars.

Descriptive marks describe a feature of the goods/service Blooms for florist, A slim and trim picture for slimming capsules. These are weak trademarks as any person in that field could use such terms to describe the same.

Suggestive marks do not directly refer to the goods, but hint at a quality thereof. These can form good marks. Say Jaguars for cars(suggestive of speed), Stardust for a film magazine etc.

Arbitrary marks are real words whose meaning is totally unrelated to the product and form good trademarks. Sagar Ratna for restaurant services, Grey Goose Vodka.

Fanciful marks comprise of one or more invented words. These form the strongest kind of trademarks, for instance, Exon, Kodak, Xerox.

Apart from the above general parameters, due care has to be given to the provisions of the Act while selecting a trademark to ensure that the mark is good in law.

Grounds for Refusal of Trade Marks

Section 9(1) lists three categories of marks that shall not be registered:

• Those which are devoid of a distinctive character.

• Those which consist exclusively of indications which may serve in trade to designate the kind, quality, quantity, intended purpose, values, geographical origin, or the time of production of goods / services, or other characteristics of goods or service.

• Those which consist exclusively of marks which have become customary in the current language or in the bona fide and established practices of the trade.

• Those which deceive the public or causes confusion, contain matter likely to hurt religious susceptibilities or scandalous or obscene in nature, or if its use is prohibited under the Emblems and Names Act, 1950.

• Those which consist exclusively of the shape of goods which results from the nature of the goods or shape necessary to obtain a technical result or a shape which gives substantial value to the goods, it shall not be registered. Triangular shaped containers for chocolates (think Toblerone) is not hit by any of the restrictions and can be registered for chocolates.

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