Saturday, 11 February 2012



 

TRADEMARKS IN IT

-Team IP Dome





Trademarks are any word, term, name, symbol, or device, or any combination thereof that are used in commerce as brand names, domain names, tag lines, slogans, non-functional or what is known as trade dress- distinctive packaging and labeling designs, etc. to indicate the source of a good (product) or service and distinguish (make distinctive) one good (product) or service from another.

In layman’s language, the trade mark is a visual symbol which may be a word, signature, name, device, label, numerals or combination of colors used by one undertaking on goods or services or other articles of commerce to distinguish it from other similar goods or services originating from a different undertaking.

Trademarks are often confused with the related term ‘Brand’. Simply put, a brand is the idea or image of a specific product or service that consumers connect with, by identifying the name, logo, slogan, or design of the company who owns the idea or image. Branding is when that idea or image is marketed so that it is recognizable by more and more people, and identified with a certain service or product when there are many other companies offering the same service or product.

A trademark is highly significant to a business or organization because the general public identifies the mark with the provider of good and/or services. This means the general public equates the mark with the reputation of the goods and/or services. An enterprise's trademark can frequently be its most valuable asset. A study conducted at Columbia University found that for consumer products and services, well-managed brands typically represent 50 to 80 percent of the entire value of their companies. For business to business products and services, the percentages were lower but still significant – 20 to 30 percent.

The opportunities for expansion, franchising, and e-commerce in today's global economy make brand recognition and brand integrity more important than ever. It is therefore extremely essential for emerging companies and start-ups to take necessary action to insure the integrity of its trademark by registering it.  By protecting a trademark, an enterprise is in effect protecting its reputation while discouraging counterfeiting and imposters. A carefully selected and nurtured trademark is avaluable business asset for most companies. Therefore, the very ownershipof a trademark with a good image and reputationprovides a company with a competitive edge.

 In India, the trade mark laws are governed by Trade Marks Act, 1999 which is in conformity with the TRIPS Agreement to which India is a signatory.  Other sources which affect the trademark law are International Multilateral Convention, National Bilateral Treaty, Regional Treaty, Decision of the Courts, Office practice and rulings, Decision of Intellectual Property Appellate Board. The Trademarks Registry had been functioning since 1.9.1940 for the administration of the Trade and Merchandise Marks Act, 1958 read with the Trade and Merchandise Rules, 1959 Since September 20, 2003 the Trademarks Act 1999 read with The Trademark Rules 2001 has come in force. Apart from the above, the Trade Marks Registry has other functions like issue of search reports as to whether an identical or deceptively similar trade mark is already registered or filed, preliminary advice regarding distinctiveness of a trade mark, issuing of search certificate for use under the Copyright Act, preparation of search materials, maintenance of Register of Trade Marks.

Before filing a trademark application, it is necessary to identify the classes in which you wish to seek protection for your trademark.An application should be made in the relevant classes of current goods/services as well as in classes where there is intent to use. Various kinds of Goods and services, which are classified according to the International Classification of goods and services, are covered under Nice Classification that provides a list of such goods and services falling in different classes. [Indications of Goods and/or Services] Each registration and any publication effected by an Office which concerns an application or registration and which indicates goods and/or services shall indicate the goods and/or services by their names, grouped according to the classes of the Nice Classification, and each group shall be preceded by the number of the class of that Classification to which that group of goods or services belongs and shall be presented in the order of the classes of the Classification. [Goods or Services in the Same Class or in Different Classes] (a) Goods or services may not be considered as being similar to each other on the ground that, in any registration or publication by the Office, they appear in the same class of the Nice Classification. (b) Goods or services may not be considered as being dissimilar from each other on the ground that, in any registration or publication by the Office, they appear in different classes of the Nice Classification.

The following list gives general information about the goods and services covered in each class by most of the IT companies in general.

Class 9Scientific, nautical, surveying, photographic, cinematographic, optical, weighing, measuring, signaling, checking (supervision), life-saving and teaching apparatus and instruments; apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling electricity; apparatus for recording, transmission or reproduction of sound or images; magnetic data carriers, recording discs; automatic vending machines and mechanisms for coin-operated apparatus; cash registers, calculating machines, data processing equipment and computers; fire-extinguishing apparatus.

Class 35 Advertising; business management; business administration; office functions.

Class 36Insurance; financial affairs; monetary affairs; real estate affairs.

Class 38 Telecommunications

Class 41 Education; providing of training; entertainment; sporting and cultural activities.

Class 42Scientific and technological services and research and design relating thereto; industrial analysis and research services; design and development of computer hardware and software.

Please note that other classes may also be relevant for specific products/services. The above information is provided so as to give a basic strategic understanding of key operational areas of Indian/Global IT industry.
References:

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