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.
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