Trademark, Introduction, Functions, Requirements & Salient Features

Abstract

A trademark is generally a visually perceptible sign used in relation to goods services. The primary purpose of a trademark is to identify commercial or trade origins of the goods or service such a trademark distinguishes a particular product form another product. It offers an assurance to the consumer that when he is buying a particular item with a trademark he is purchasing the same item which he has been assured of its quality, composition etc. So a trademark reflects the goodwill or reputation of a particular product. It is statutorily not compulsory for somebody to register a trademark. If a trade mark is register by someone in that case he has a built in right to the safety of that particular mark. The registration of a trademark does not confer any new right on the holder of the trade mark. It only supplements a right which already exists. Therefore, a trade mark registration is a cumulative and not alternative to the protection of the mark by the common law. As regards the replacement of the existing law on the subject namely the trade and merchandise Mark Act, 1958 by a new bill which was under consideration of the committee, the government was of the opinion that the existing Act has served its purpose reasonably well. To bring a new bill before the parliament there were various other reasons also. One is that any act relating to Trade Marks in the field of trade, both national and international evolves reflecting the changing realities of the market place. As such the existing Act having been there nearly for 30 and odd years started needing certain necessary amendments and changes. Similarly over a period of time the case law pertaining to trade marks got built up and there were a number of judicial pronouncements and gradually it was found that it would be desirable to incorporate these into the body of the act. In some cases, the increasing globalization of trade also viewed some lacunae in the existing act as a non tariff barrier. Accordingly the Government decided to bring the desired ratifications in the Act as it felt that felt that instead of bringing a number of modifications and amendments it would be more desirable to bring forward a new bill. The present bill according to the government incorporates certain changes which were felt necessary thereby making it more comprehensive and more transparent. It provides for more specific and greater degree of protection against infringement and more punishment for the violators of the act.