|
|
| |
-
The Trade and Merchandise Marks Act only allows
for registration of trademarks used in connection with goods.
Service marks or trade marks used in relation to services alone,
such as names of travel agencies, finance companies, airlines
etc. are not registerable under the Act and are not protected.
As a result there is no remedy available for imitation. The
best protection available for service marks in India is by a
remedy against "passing off".
-
The Trade Marks Act 1999 was passed by the
Parliament to consolidate the law relating to trademarks, to
provide for registration and better protection of trade marks
for goods and services and for the prevention of the use of
fraudulent marks. The 1999 Act has not been notified yet and
therefore is not in force. Under this Act, all trademarks have
to be registered with respect to one or more of 34 classes of
goods and 6 classes of services. Broad areas being advertising,
business management and administration, insurance, monetary
and real estate, education, entertainment, legal etc.
-
A service mark is not separately defined under
the 1999 Act, but is included in the definition of a trademark.
A trademark as defined under the 1999 Act includes a mark capable
of being represented graphically and which is capable of distinguishing
the services of one person from those of other, and a mark that
is used for the purpose of indicating a connection between the
services and the person who has the right to use that mark.
-
Under the 1999 Act, a mark could be a name,
signature, word, letter, numeral, brand, heading, label, device,
ticket or any combination of these. The use of any of these
in connection with a service, where the mark can distinguish
the service of one person from another or indicates a connection
between the service and the person who has the right to use
the mark, is brought under the definition of a trademark and
can be registered.
-
At present, unless a mark used in relation
to services has built up a substantial reputation and goodwill
it is difficult to prevent imitations of the mark. But once
the Trade Marks Act, 1999 is notified, infringement of trademarks
registered in relation to services can be prevented and relief
obtained under the Act.
|
| |
|
|
