Trademark, one of the Intellectual Properties, in simple terms, is the face and recognition of any established business or brand incorporated, in other words, they are the real heart and soul of the establishment through which a brand can be recognized within a second of seeing, hearing, feeling, or experiencing. Trademarks are usually protected globally similarly to how they are protected domestically, the World Intellectual Property Organisation (WIPO) and Trade Related Aspects of Intellectual Property (TRIPS) Agreement. A trademark is any sign that individualizes the goods of a given enterprise and distinguishes them from the goods of its competitors.. Comprehensive definition was derived by the TRIPs Agreement as any sign or any combination of signs, capable of distinguishing the goods or services of one undertaking from those of other undertakings, shall be capable of constituting a trademark. Such signs, in particular words including personal names, letters, numerals, figurative elements, and combination of colours, as well as any combinations of such signs, shall be eligible for registration as a trademark. There are numerous benefits to holding a trademark for your trade and business, there can be:
- Increased Credibility.
- Brand Differentiation.
- Legal Protection.
- Business Valuation.
- Customer Loyalty.
In India, Trademarks are protected through the legislative statute incorporated in the year 1999, namely The Trade Marks Act, 1999, According to this act, a Trademark is 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 the shape of goods, their packaging, and combination of colors. Comparatively in the United States of America, Trademarks are protected through the Federal Trademark Dilution Act of 1995 followed by amendments in the year 2006 which provides more strength and protection of the trademarks across the States and globally. In the United Kingdom, the development of trademarks was slow but a significant change was brought up by the Trademarks Act of 1994 through the implementation of the European Directive on trademarks.
Many treaties and conventions have been held, and contemporary ones take place every other year in various parts of the world to discuss the challenges, issues, protection, and way forward of intellectual property. Few conferences have been held in history to safeguard the interests of trademark owners.
- Paris Convention, 1883
- Madrid Agreement and Protocol, 1891
- The Trademark Law Treaty (TLT), 1994
- TRIPs Agreement, 1995
Trademarks always serve as a face of trade and business; it is one of the most valuable assets of a company. Some establishments try to use the well-known Trademarks holding huge percentage in markets and the already created market of such business in their favor to gain huge profits out of it, they try to alter and confuse the consumers and users to opt for their products as a substitute. Common things from water bottles, and food consumables to heavy machinery articles including motor vehicle parts, and confusing trademarks are used. Keeping in view of the above scenario, Trademark infringement is considered illegal, not just in India but globally strict steps are ensured to protect the sanctity of registered trademarks. In India, as said above it is protected under the Trademarks Act of 1999.
The Hon’ble Courts in India deal with such infringements and ensure that relief is served to the owner of the real trade and business. Delhi High Court was the first court to establish a special bench to deal with the issues of Intellectual properties, then Madaras High Court followed by the new bench established at the Calcutta High Court specifically for dealing with the concern matters of Infringements of Intellectual properties including the Trademarks. In the case of Starbucks Coffee v. Sardarbuksh Coffee & Co. where defendant, Sardarbuksh Coffee and Co. were using the similar and confusing logo of Starbucks which can be seen in the image, which looks very similar to the brand logo of Starbucks, in the High Court of Delhi when the case was appealed then the Hon’ble Court observed that both the company’s products are similar and it is a significant unwritten rule that if the companies dealing with the distinct products with similar names will not amount to infringement of the trademark but here in this case, the products and the company names are similar to the extend and ruled out that the Sardarbuksh Coffee & Co. is infrinfing the trademark of the Starbucks coffee and later court directed the change in name for Sardarbuksh Coffee & Co. to the Sardarjibuksh Coffee & Co. and made the defendant sure that in future if any new entry with the name as Baksh come across, then the protection will be provided to their brand name as it is part of the trademark and provided relief to the plaintiff. In another case of The Coca-Cola Company vs Bisleri International Pvt. Ltd. & Ors. here, in this case, Coca-Cola brought the rights of a soft drink “Mazaa” including its all IPRs, but later on, Bisleri registered the same name in Turkey and started exporting the Mazaa from India, Plaintiff reached the Delhi High Court for seeking protection for their brought Intellectual property over goodwill. Delhi High Court ruled out that this amounts to infringement and court-ordered interim injunction to the defendant in the case and considered the act as an act of infringement.
Registering your trademark as early as possible is also a vital step in securing the trademark, in this world of 6 billion people carrying equivalent ideas and similarities in ideas is not a shocking thing, so registering your trade and business in terms of creating your goodwill, expanding your establishment, moving globally will make it more important, especially in this 21st century, where your business and trade will be judged on the served years if you carry similar trademark in terms of logo, design or any other graphical representation.
In recent, a similar, what happened in the case of Burger King v. Burger King where the plaintiff was an international brand owning 13000 outlets worldwide and the defendant was the local Irani family that owned a restaurant in the name of Burger King since 1992, the plaintiff was seeking band damage worth Rs. 20 lakhs, the court ruled that this is not an infringement as the plaintiff failed to establish proper evidence proving that the customers are getting confused due to the imaging name that Irani restaurant was holding and the local restaurant was established in 1994, i.e. 10 years before the Burger King international entered into the Indian markets and dismissed the petition filed.
Trademarks are real game changers and players, there are n number of trades and businesses in India where trademarks are not registered and secure, holding the capacity to grow and get included in Unicorn companies also. Being a huge unorganized and unaware markets in India, many business establishments are not aware of the trademark rules and if it is not secured during the initial stage, the goodwill created by the business will be taken by the person who is registering it, Nowadays it is very common that the trending and growing business establishments are caught by the professionals who are sitting to acquire their intellectual properties if they are not registered under the act. like their name’s internet domain, logos… Etc. The best example is Physics waala, when it was gaining fame and trend, someone registered the online domain of their name and was trying to sell them for elevated prices, this thing happened with Google Inc. as well as with Tesla Inc. There is a need for awareness which should be made through the local administrators and legal advisors for their respective trade and business owners, which will help them secure the trademarks at the earliest and the trade and business will be saved from the future uncertainties.
Concludingly, we know the importance of Trademarks in any trade and business, how they are the actual face and recognition of a company globally, with the trademark in any form how it is prescribed under the law, the consumer, users, and the service utilizers can recognize the brand within no time on just a sight. So, in this world of globalization, where the boundaries are shrinking day by day in trade and commerce, where a tiny needle made in India is available for sale in the United States and corn grown in Mexico is easily available for buying in the Indian markets, it becomes necessary to protect one’s business and trade through the form of registering their intellectual properties and ultimately the trademark is one among them which ought to register in the initial stage itself to avoid unforeseen circumstances if any, may arise in future.
This article has been authored by Ali Hyder.
