The common law trademark is enshrined in the Trade Marks Act, 1999. The Trademark Act, 1999 seeks to provide for the registration of trademarks relating to goods and services in India. The rights granted under the Act, are functioning in the whole of India. Trademark common law rights are property rights that do not completely require formal registration in order to enforce them.
A trademark is a word, symbol, phrase, and design, or combination of words, phrases, symbols or designs is used in the course of trade which identifies and distinguishes the source of the goods or services of one enterprise from those of others.
- Classification of Services and Goods
India employs a classification system in which goods and services have been grouped into classes for registration. Most countries follow the same classification system, namely the International Classification of services and Goods, which consists of 34 classes of goods and 8 classes of services.
- Rights conferred by registration
The registration of a trademark confers on the registered proprietor of the trademark the limited right to use the trademark in relation to the goods or services in respect of which the trademark is registered. While registration of a trademark is not necessary it offers better legal protection for action for infringement.
- Trademark Search
Before making an application for registration it is careful to make an inspection of the already registered trademarks to ensure that registration may not be denied in view of resemblance of the proposed mark to an existing one or prohibited one.
- Who Can Apply For A Trademark
Any person can apply for registration of a trademark to the Trademark Registry under whose jurisdiction the major place of the business of the applicant in India falls. In case of a company about to be formed, anyone may apply in his name for following assignment of the registration in the company's favor.
- Duration of a Trademark
The term of a trademark registration is only for a period of ten years. The renewal is possible for period of 10 years each. Unlike patents, copyrights and industrial design trademark rights can last indefinitely if the owner continues to use the mark.
- Use of the "TM," "SM" and "(R)" Symbols
Anyone who claims rights in a mark can use the TM (trademark) and SM (service mark) designation with the mark to alert the public of the claim. It is not essential to have a registration, to use these designations.
- Use of Trademarks in Foreign Countries
Trademark rights are granted on a country basis. An Indian registration provides protection in India and its territories. If the owner of a mark wishes to protect a mark in other countries, the owner must seek protection in each country separately under the applicable laws.
- International trademark protection
Almost all countries have trademark offices in which applications may be filed. Therefore, when contemplating trademark protection in different countries, it is most helpful to start with a list of countries where registered trademark protection is available. Deciding where to register a trademark involves different considerations.