The Indian Trade Marks law, viz. the Trade Marks Act 1999 provides protection for
- marks of goods and services
- collective marks
- certification trademarks, and
- well-known marks.
Under Indian law it is not mandatory to register trade marks to avail the legal protection.
The usage of trade marks is more important and protection of law in the form of passing off is available. However, the relief in the form of infringement can be availed only if the trade mark is registered under the Trade Marks Act.
The registration of mark does not give precedence over usage of the mark.
The registration is valid for 10 year and can be renewed thereafter.
In appropriate cases, police can seize without warrant the counterfeit goods. Further penalty under the law is in the form of imprisonment for 6 months to 3 years and monetary fines.
The Trade Marks Act, 1999 has come into force from the 15th of September 2003. An important feature of the Act is the introduction of the registration of Service Marks in India. Previously, Service Mark registration in India was not allowed. Protection of service marks was available only under the common Law. From September 2003, it has now become possible to separately register and therefore legally protect Service Marks.
What is Service Mark?
Service Marks are marks used in any form of service business where actual goods under that mark are not traded. Services are identifying the source of Service provided by Company/Firm/Individuals. For instance, a Hotel or a restaurant is a service: under the marks Taj, Oberoi, Sheraton, Meridian, Sher-e-Punjab, Khyber, Chinese Room, no goods are traded, but services are offered and purchased, these marks are legally protected under the Act. Similarly, marks for software services or business process outsourcing services, or health, insurance, repair services or airlines services or educational services can be protected by registration.
Following Services are now protected as a SERVICE MARK in INDIA under the Trademarks Act, 1999.
- Insurance; financial affairs; monetary affairs; real estate affairs
- Building construction; repair; installation services
- Transport; packaging & storage of goods; travel arrangement
- Treatment of materials
- Education; providing of training; entertainment; sporting & cultural activities
- Scientific & technological services, research & design;
- industrial analysis & research services;
- design & development of computer hardware & software;
- legal services;
- Services for providing food & drink;
- temporary accommodation;
- Medical services;
- veterinary services;
- hygienic and beauty care for human beings or animals;
- agriculture, horticulture and forestry services;
- Personal and social services rendered by others to meet the needs of individuals;
- security services for the protection of property and individuals.
Goods and Services are classified under various classes. Under the old trademark law, Only 34 classes for goods were available. Under the Trademark Act of 1999, 11 more classes have been created for protection of service marks, i.e. classes 35 to 45.
It may be noted that following nature of trade marks can not be registered under Section 9 of the Trade Marks Act, 1999.
Trade marks which are –
(a) devoid of any distinctive character, that is to say, not capable of distinguishing the goods or services of one person from those of another person;
(b) which consist exclusively of marks or indications which may serve in trade to designate the kind, quality, quantity, intended purpose, values, geographical origin or the time of production of the goods or rendering of the service or other characteristics of the goods or service;
(c) which consist exclusively of marks or indications which have become customary in the current language or in the bona fide and established practices of the trade.
However if a trade mark has acquired a distinctive character as a result of the use made of it before the date of application for registration or is a well-known trade mark, then the same cannot be refused registration.