A trademark is the sign capable of distinguishing between the goods & services of one enterprise to from those of other enterprises. Trademarks are fully protected under the intellectual property rights.[1] The trade mark registry was established in India in 1940s. Presently it administer the Trade Marks Act, 1999. It serves as a resource and information center and is a facilitator on issues related to trademarks in the country. The purpose of the Trademarks Act, 1999 is to register trademarks applied for in the country and to provide better protection of the trademark of goods and services and to prevent fraudulent use of the trademark. The main function of the Registry is to register the relevant trading marks to obtain registration under the Acts and the Rules.[2]

Before 1940 there was no trademark law in India. Many problems have arisen with the violation of registered and unregistered trademarks which were resolved under section 54 of the Specific Assistance Act, 1877 and registration was sentenced under the Indian Registration Act, 1908. To overcome this difficulty, the law of India Trademark was enacted in 1940. After the application of the trademark law, the need for trademark protection increased as there was a significant growth in trade and commerce.[3]

Trademark is designated by:

·         ™ (™ is used for an unregistered trade mark. It is used to promote the brand goods).

·         ℠  ( used for any unregistered service mark. It is used to promote any brand services).

·         R   (letter R is surrounded by a circle and used for registered trademark only).

The Trade Marks Act provides, inter alia, for registration of service marks, filing of multiclass applications, increasing in the terms of registration of a trademark to ten years as well as recognition of the concept of well known trade marks & etc. The Indian judiciary has been proactive in the protecting all kind of trademarks, and it has extended the protection under the trademarks law to Domain Names as demonstrated in landmark cases of Tata Sons Ltd. v Manu Kosuri & Ors[4]  and Yahoo Inc. v Akash Arora.[5]

In Bhavnesh Mohanlal Amin v. Nirma chemicals Works Ltd[6] the Supreme Court held that the trademark NIMA is deceptively similar to the registered trademark NIRMA in appearance as well as pronunciation and hence amounts to infringement and hence upheld the decision of the trial court of granting injunction46 against the Bhavnesh Mohanlal Amin for using the trademark “NIMA”.

Registration process of trade mark in India.

·         Select an authorize the trademark agent or attorney to represent you.

·         Trademark attorney conduct the Search.

·         Depending on the search results, a trademark attorney will write your trademark application. In the event that someone has the same or similar trademark, you may need to change your own.

·         The Trademark Attorney will submit your trademark application to the Trademark Office and send you a receipt.

·         After a few days, the trademark will send you the Original Representation Sheet for your trademark as it is filed with the Trade Office.

It may take between 18 months to 2 years for the Trademark Office to decide whether or not to allow you to give you a trademark; if there is a dispute from the trading office or someone else, it can take a long time. And the trademark will published in the Trademark Journal.[7]

In, M/s Marvel Tea Estate India Ltd v. M/s Nusun Genetic Research Ltd.[8] the Delhi high court passed an interim order and restrained the defendant from using the plaintiffs trademark ‘MARVEL’ and also ordered to dispose of whatever materials are left by the name ‘NUSUN MARVEL’ within six month time as the defendant used a identical trademark and this amounted to infringement and passing off of the Plaintiff’s trademark.

Trademark owner or the registered user[9] gets the right to use it legally or assignee always has and gets a legal Right as to its usage[10]. Provided such proprietor is prior to use such trademark or service mark. Once the proprietor of such trademark is a registered® trademark owner under the trademark Act then such proprietor gets statutory right as to its exclusive usage  and protection under the act subject to certain provisions of the Act. If the trademark is unregistered™ then trademark is protected by the common law action of passing off. The trademark act too has recognized and protected the rights of unregistered prior user to an extent that even the registered trademark cannot stop the usage of unregistered prior user. In Ramdev Foods Products Pvt. Ltd. v. Arvind bai Rambai Patel Pvt. Ltd[11] the Supreme Court made an observation that Section 28 of the trademark Act gives exclusive right as to its usage to whoever registers the trademark under the Act.

Trade law passed by the Indian government operates within the territory of India. Registered trade trips only work in India, as protecting a foreign trade mark requires registration in another country. Each country has a trademark law with its own rules and regulations for the registration of trademarks in that country. In other words, if a person wishes to obtain a trademark register in any particular country a separate system must be used in all parts of the world. Before the end of 2013, the Indian government approved a convention in Madrid setting the stage for the submission of international applications for contracts from India through the work of the Registrar of Trademark. For example – mobile phone production in India “Micromax” has received $ 1.25 billion trademark registration to protect the “MICROMAX” trademark in more than 110 countries. Registration of the Micromax international trademark affiliated with the Madrid Protocol, under the trademark may be protected from further breach by simply applying for international registration.[12]

There are two methods by which an international application can be filed:-

·         International application in each foreign country: To protect a trademark in any foreign country, an international application must be submitted to the trade office in accordance with the laws and regulations of that country. For this purpose the applicant must hire a foreign trade registration company, applications to countries that are not part of the Madrid protocol.

·         The international application under the Madrid system: The trademark registration can also be initiated by means of an international application under the Madrid protocol before the Registrar of Trademark. India’s trade office collects an international trade application and upon receipt of it agrees with the Madrid agreement and submits an international application to WIPO (World Intellectual Property Organization), which transfers it overseas. The entire software is processed in a national and international manner and all communications are conducted by the Indian executives.[13]

Intellectual Property indicates that the lower body of a product is a mental or intellectual product. As it is a product of a creative and creative concept, it can be sold, purchased, donated and stored. All of this can be done but there are related issues that need to be addressed. Trademarks are a very important feature of Intellectual Property Property, therefore, trademark protection has become important in this day and age, everyone who creates a good product or service will want its brand unique, eye-catching and should be easily distinguished from others.

Intellectual Property is not a unwanted concept, in fact, it is a concept which is discussed in everyday life whether a movie, book, plant variety, food items, cosmetics, electrical gadgets, vehicles etc.. It has emerge as a concept of pervasiveness in everyday life. The World Intellectual Property Day on 26th April every year.