Trademark and Types


Authors:

Kavya Shukla – JGU

Sumreet Kaur – Guru Gobind Singh Indraprastha University

Editor:

Tejas Chhura - NLSIU


INTRODUCTION

Trademark law in India is governed by the Trademark Act, 1999. Passes in 1999, the Trade Mark Act aimed to help register and enforce trademarks applied by people on our country to prevent fraud and misuse of the mark and also for better protection of trademarks for good and service, so that the ones who are applying for it does not face any problem in the present as well as the future.

There are different kinds of trademarks like Product Mark, Service Mark, Collective Mark, Certification Mark, Shape Marks, Pattern Mark and Sound Mark. While the purpose of all the trademarks is same, they help customers to identify the originality of the product, whether the product the customer is buying is original or duplicate and also helps customers to distinguish various products, and also it assures products and services quality.

Product Mark

A product mark is almost the same as a trademark. However, unlike trademarks, which only related to products or goods and not services, product marks are used to identify the source of a particular product and also via this, we can distinguish among manufacturers product.

Service Mark

A service mark does not identify a particular product, but instead of that identifies and differentiates the source of service. Service mark does not represent good offered by the company, but the services which are offered by the company are recognized by Service Mark. Companies providing services like computer hardware and software assembly, restaurant and hotel services, courier and transport, beauty and health care, advertising, publishing, etc. are now in a position to protect their names and marks from being misused by others. Services of one company to that of another are distinguished by a Service Mark. It is represented by 'SM'.

Collective Mark

Collective Marks are the type of trademark which are used by a group of companies and are protected by the group collectively, to inform the general public of a particular characteristic of a product a collective mark is used. As said above, a collective mark is used by a group of companies. Therefore, the owner of such marks could be an association or public institution or a cooperative too. If a trader belongs to the association for the collective mark, then that trader or any trader belonging to that association can use that collective mark. Hence, the purpose of a collective mark is very simple, that is to inform the general public about certain features of the product. The trader associated with a particular collective mark is responsible for ensuring the compliance with certain standards which are fixed in the regulations concerning the use of the collective mark, by its members.

CERTIFICATION MARKS-

Certification mark represents a sign indicating that the goods/services are certified by the owner of the sign in terms of origin, material, quality, accuracy, or other characteristics. [3] The state has enforced certification marks presently in India to protect the economic interest of every citizen like AGMARK for agricultural products, ISI mark for electrical products, BIS mark for gold ornaments and "FPO mark for all the processed fruit products. Further, there are some of the most essential certification marks to protect consumer rights:

Bis hallmark-It has now become mandatory for all the gold jewellers to hallmark gold jewellery. The Ministry of Consumer Affairs, Food and Public Distribution issued a notification on January 14 stating that it will give one year's time to jewellers and retailers to register themselves with the Bureau of Indian Standards (BIS) and clear their old stock.[4]

Agmark-It is a certification mark issued by the Directorate of Marketing and Inspection of the Government of India. It is applicable to all the agricultural products, and it was enforceable since 1937(amended in 1986). This term was presented initially in the bill introduced in the parliament of India for the Agricultural Produce (Grading and Marking) Act. The present AGMARK standards cover quality rules for 205 different commodities crossing over a variety of Pulses, Cereals, Essential Oils, Vegetable Oils, Fruits and Vegetables, and semi-prepared items like Vermicelli. The AGMARK credential is given only after being assessed through AGMARK research centres situated in the country which act as testing and clarifying centres. The item that has to be tested differs across the centres.[5]

ISI mark-ISI mark is issued by Bureau of Indian Standards. It is mainly for industrial products. The ISI mark continues to be used to mean that a certain product conforms to the quality standards set up by the government. This certification is primarily voluntary. There are 16 broad categories, including textiles, packaged water, food, automobile components, plastic products and electronics, for which BIS has laid down standards.[6]

SHAPE MARKS-

As the name suggests shape marks, shape marks, deal with trademarking the shape of a good (the shape of goods and their packaging). As it's possible to graphically represent the shape clearly, it is possible to trademark the same. This helps in differentiating the goods sold under such trademark from those of another manufacturer.

PATTERN MARK-

Pattern Mark consists of a pattern which is capable of identifying the goods or services as originating from a particular undertaking. These marks are a set of pattern which are descriptive or customary in trade which helps goods or services to be distinct from each other or otherwise, in-distinctive are objectionable because they are incapable of serving as an identifier of trade source and they would not be accepted for registration without evidence of acquired uncommonness. There are pattern marks for goods and patter marks for services separately.

SOUND MARK-

Jingles and music are an essential part of an advertisement. In such cases, the sound trademark comes into action and can be opted up for registration. They are registrable and deserve full protection under the Trade Marks Law. In India, sound marks such as the Yahoo yodel and the corporate jingle of ICICI Bank have already been registered. The former was the first sound mark to be granted registration in India, and the latter was the first sound mark to be registered in the name of an Indian entity. Other sound marks that are registered in India include the sound of 'Hisamitsu' sung over certain musical notations and applied on a 'proposed to be used' basis by Hisamitsu Pharmaceutical Co of Japan; certain sound marks of Allianz of Germany in respect of insurance and financial services; and the popular musical sequence of Raymond: The Complete Man. Coming back to the new Trade Marks Rules 2017, applications for sound marks must now be submitted in an MP3 format, not exceeding 30 seconds in length and recorded on a medium allowing easy and clear audible replay. This has to be accompanied by a graphical representation of the notations constituting the sound mark, according to Rule 26(5). Although the term "notations" has not been defined under the new rules and there is no explanation given as to what may be acceptable to fulfil the requirement of "a graphical representation of its notations". Generally, modern staff notations are acceptable for musical compositions. However, the fact that the scope of these terms has not been defined or restricted to mean only a particular manner of rendering the notations graphically, the legislative intent appears to be inclusive and thus progressive in nature. As a result, in so far as the graphical notations in the sound mark application are unambiguous and clearly define the mark, the notations would be acceptable. This is particularly useful in the case of a sound that is not musical and rather arbitrary noise but is still capable of being registered as a sound mark on account of its distinctiveness.[7]

CONCLUSION

Trademarks are marketing tools which helps in augmenting not only the financial strata of the business as well as its reputation among its consumers. A trademark is not a brand, but a brand is always a trademark as we have earlier discussed the authenticity, distinctiveness of a brand is stated with its trademark. Trademark being a distinguishing sign or indicator in a business organization reduces the scope of ambiguity further. Thereafter, the protection of trademark has become an important part in the present generation, every manufacturer of a good or service would want to reach a large scale of audience and will want his trademark to be different and eye-catching.

Citations

[1] Trade Marks Act, 1999, s 2(m).

[2] Trade Marks Act, 1999, s 2(zb).

[3] Parita M, Types of Trademarks, <http://kanoon.nearlaw.com/2018/01/17/types-trademark-india/>.

[4] ETOnline <https://economictimes.indiatimes.com/wealth/spend/hallmarking-of-gold-jewellery-mandatory-from-today-heres-what-you-need-to-know/articleshow/73267695.cms?from=mdr>

[5] “What is AGMARK? What are the requirements to apply AGMARK application?” <https://medium.com/@pearlstartup247/what-is-agmark-and-what-are-the-requirements-to-apply-agmark-application-b248dba22bc3>

[6] Vandana Vasudevan, “What is the ISI mark all about?” <https://www.livemint.com/Opinion/hHWPst1Oop8oyJSlkzw8OL/What-is-the-ISI-mark-all-about.html>.

[7] Dheeraj Kapoor, “India: Sound Marks: A New perspective” <https://www.mondaq.com/india/trademark/598438/sound-marks-a-new-perspective#:~:text=In%20India%2C%20sound%20marks%20such,name%20of%20an%20Indian%20entity.>.

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