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[P96]Patent And Trademark Law Office

by Sharon White, Sha

Trademark law has sought to protect not just the company and the products that it produces, but consumers and their interest in purchasing a product with consistent quality. Permitting a company to take advantage of a well known product and benefit from its famous name hurts not just the company with the famous name, but the consumer who mistakenly purchases the product believing it is the famous brand. One problem lies in the fact that there are different types of consumers. There are consumers that are product savvy and would not confuse two similar products, but there are unsophisticated consumers who will undoubtedly confuse the two. An actual harm requirement hurts the unsophisticated consumer by requiring consumer confusion before the famous brand can ask for an injunction pursuant to the Federal Trademark Dilution Act.

From the time of the Industrial Revolution trademarks have been important to commerce. Marks were used to identify a manufacturer’s product and to differentiate it from other products in the market. Consumers would rely on these marks to indicate where particular products came from. Congress’s first attempt at federal trademark legislation in 1870 failed as it was declared unconstitutional by the Supreme Court in 1879. It was determined by the court that Congress was overstepping its authority granted in the commerce clause of the Constitution. Congress adopted a federal registration statute in 1881, with no mention of interstate commerce. It applied only to commerce with Indian tribes and foreign countries. Additionally, prior to 1905 it was required that the junior mark must not only bear a similar mark, but it must be in direct competition with the senior mark in order to seek an injunction.

If a consumer, who relied on a trademark as a product identifier, intended to purchase the senior mark’s product and mistakenly purchased the junior mark’s product, the senior mark lost profits and the consumer purchased something they did not intend to purchase.

To be in par with international trademark law, the Indiantrademark law has been codified and is about to undergo an amendment. Recently India signed the Madrid Protocol allowingforeign applicants to file international application designating India like mostof the other countries in the world. Trademark registration India makes itmandatory to fulfill certain requirements. These requirements specify that thetrademark to be registered should be distinctive and not deceptive. This meansthat words describing the product, geographical names and common surnamesshould always be avoided. The concept of ?well known mark? was also introducedafter the last amendment.

Priority: It is important to file a correspondingapplication in Indiafor claiming a priority from an application made in US. states thatthe process should be completed within six months from the date of filing theoriginal application.

Grounds of refusal: A can be rejectedon following grounds.

Absolute ground: Section 9 states the various absolute groundsunder which the applications can be rejected. This includes points such astrademark devoid of distinctive character, descriptive trademark, trademarklikely to cause confusion and trademarks prohibited under the Emblems and NamesAct, 1950.

Prohibition: Section 13 of the act prohibits the registration ofeach such trademark which is a commonly used and universally accepted name of achemical element. OR has been declared by the WHO and been notified by theregistrar as international non proprietary name.

Statutory defense: statesdown various statutory defense available to the applicants. This mainlyincludes honest concurrent usage, prior user and acquiescence for registration,parallel imports, generic ness and fair use while describing the products forcriminal matters.

License/Assignment: Under the trademark registration law Indiatrademarks are recognized as movable property thus, can be easilylicensed/assigned. Thus, a trademark can be easily assigned irrespective of thegoodwill attached to it.

Article Source : Where To Apply For A Patent

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Both Sharon White & Harpreet are contributors for EditorialToday. The above articles have been edited for relevancy and timeliness. All write-ups, reviews, tips and guides published by EditorialToday.com and its partners or affiliates are for informational purposes only. They should not be used for any legal or any other type of advice. We do not endorse any author, contributor, writer or article posted by our team.

Sharon White has sinced written about articles on various topics from Writing, computers and the internet and Careers and Job Hunting. The article was produced by the writer of masterpapers.com.Sharon White is a senior writer and writers’ consultant in