A trademark means a word, phrase, symbol, logo, name, mark which suggest the origin of goods and is used in relation to goods and services for the purpose of indicating, or so as to indicate a connection between the goods or services and the person having the right to use the same as proprietor thereof in the course of trade.
The registration of a trademark confers on the registered proprietor of the trademark the exclusive right to use the trademark in relation to the goods or services in respect of which the trademark is registered.
Anyone who claims rights in a mark can use the TM (trademark) or SM (service mark) designation with the mark to alert the public of his/her claim. A symbol â€œRâ€ in Circle denotes the mark as registered.
The registration of trade mark is valid for the period of ten years and can be renewed from time to time before the expiry of every ten years.
There are Two types of Legal Remedies are available in India to the owner of a trademark for unauthorized use of his or her mark or its imitation by a third party. The legal remedies to protect the trade mark from being unauthorize used are: -
- 'An action for infringement' in case of a registered trademark and
- 'An action for passing off' in the case of an unregistered trademark.
The basic difference between an infringement action and an action for passing off is that the infringement action is a statutory remedy and can be initiated
by the Registered Proprietor of a trade mark only when the infringing mark is identical or deceptively similar to the Registered Trade Mark and further proof is required to be produced and the â€œpassing offâ€ action
is a common law remedy and can be initiated on the grounds of prior unregistered trade mark and in an action of passing off action, proving that the marks are identical or deceptively similar alone is not sufficient.
The use of the mark should be likely to deceive or cause confusion. Further, in a passing off action it is necessary to prove that the use of the trademark by the defendant is likely to cause injury or damage to the plaintiffâ€™s goodwill,
whereas in an infringement suit, the use of the mark by the defendant need not cause any injury to the plaintiff.