According to the Trade Marks Act,1999
,the 'trade mark
' means 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 shape of goods, their packaging and combination of colours.
The Trade Marks Act,1999 is the governing Act for Trade Marks in India. The objective of the Act is to register trade marks applied for in the country and to provide for better protection of trade mark for goods and services and also to prevent fraudulent use of the mark.
Under the Act, the Controller-General of Patents,Designs and Trade Marks under Department of Industrial Policy and promotion, Ministry of Commerce and Industry is the 'Registrar of Trade Marks'. The Registrar is required to classify goods and services in accordance with their International classification for the purpose of registration of trade marks and his decision is final. Currently, schedule IV of the Act provides a summary of list of such goods and services falling in different classes. The Controller General of Patents, Designs & Trade Marks directs and supervises the functioning of the Trade Marks Registry (TMR). The 'Trade Marks Registry' administers the Trade Marks Act, 1999 and the rules thereunder. It acts as a resource and information centre and is a facilitator in matters relating to trade marks in the country. The main function of the Registry is to register trade marks which qualify for registration under the Act and Rules.
Any person claiming to be the proprietor of a trademark used or proposed to be used by him may apply in writing to the Registrar in the prescribed manner for registration of a trade mark. A single application can be made for registration of a trade mark for different classes of goods and services. Application has to be filed in the office of the Trade Marks Registry, within whose territorial limits, the applicant carry on business in India. When an application for registration of a trade mark has been accepted, then it is advertised in the Trade Marks Journal. The duration of registration shall be for a period of ten years from the date of registration but it may be renewed from time to time in accordance with the provision of this Act. The registration of a trade mark confers upon the owner the exclusive right to the use of the registered trade mark and indicates so by using the symbol (R) in relation to the goods or services in respect of which the mark is registered and seek the relief of infringement in appropriate courts in the country.
The trade mark shall not be registered if it is of nature so as to deceive public, cause confusion, has identity with or similar to an earlier trade mark or comprises or contains scandalous or obscene matter, etc. It should also not consist exclusively of shape of goods which results from the nature of goods themselves or which is necessary to obtain a technical result or which gives substantial value to goods.