In today’s competitive market, the customer identifies the quality of a product through its trademark and brand name. This makes it all the more important for the proprietor to protect its goods from counterfeiting. Counterfeit goods are goods of inferior quality which are sold under the brand name of the other without his permission. This is possible through registration of a trademark. Now, What is a trademark? A trademark can be identified as any mark, symbol, name, sign, design or anything that helps the customer identify your products and distinguishes them from the similar goods or services of other proprietors. Some registered trademarks include Pepsi, Coca Cola, Adidas, Haldirams, Cadbury, etc. It is not mandatory to get a trademark registered. But after conducting a sound trademark search online and selecting your trademark you can be the sole user of your trademark.
How does a trademark protect from counterfeit goods?
A registered trademark is an intellectual property right of a business and it helps in protecting its goodwill. Identical or similar trademarks are not qualified for registration. The Controller General of Patents Designs and Trademarks, Ministry of Commerce and Industry, Government of India is responsible for the registration of trademarks. After registering your trademark and receiving the registration certificate, you are entitled to use the ™ symbol. A registered trademark serves various benefits. The most important of them is that it provides protection from counterfeited goods and services. It protects in the following manner-
- Legal Protection- The proprietors with a registered trademark can only file a suit against counterfeited goods. No- registration of trademark takes away this right. If someone infringes the trademark, a suit can be filed against him for trademark violation. So, nobody can sell fake and fraudulent products under your name.
- Exclusive Right to Use- A registered trademark provides an exclusive right to use and hence prevents the good from getting counterfeited. It keeps the quality of the product intact and helps in building up the trust among the customers. It means only Nike can sell its products under the trademark “just do it” as it has registered it under its name.
- Protects the Goodwill- A registered trademark helps in protecting the goodwill of the company. It prevents passing off of goods and hence builds trust among the customers.
- Avoids Confusion and Deception- A registered trademark helps in avoiding confusion and deception. A customer can relate to the quality of the product. It builds upon the trust which prevents others from selling counterfeit goods. For example – customers can identify the difference between Coca Cola and Campa Cola through its trademark and brand name.
- It gives uniqueness and identification- A trademark gives uniqueness to your product. It creates an identity in the eyes of the customers. The customers identify the quality of the products through the trademark. This puts a hold on the counterfeiting of products. A registered trademark prevents infringing activities like meta-tagging, piracy, etc.
Is Trademark Registration Mandatory?
No, trademark registration is not mandatory. But it is advisable to get it registered as under Section 28 of the Trade Marks Act, 1999, it is clearly stated that registration provides an exclusive right to use to the owner of the trademark. It also entitles him to file an infringement suit against the person who tries to sell his products under the name of the registered trademark. Section 27 states that this right is not available with the unregistered trademark owners. It is important to get your trademark registered to avail this benefit.
Who can file for a trademark?
Any person who claims to be the owner or proprietor of the mark can get it registered under his name. He must already be using the mark or must intend to use the same. A trademark must not be specific or generic as it becomes difficult to register the same. For example, names such as Aggarwal, Soft diapers, etc. A name must be distinctive and fanciful or arbitrary like KODAK, EXXON, etc. to qualify for registration. It is important to conduct a trademark search before adopting a trademark, in order to avoid using someone else’s trademark. This helps in avoiding similarity. An invented or coined word is easier to register. A trademark is registered under the class or classes of goods that identify with the product. A registered trademark has a validity for 10 years and can be subsequently renewed after every 10 years.
Remedies against Counterfeiting of Trademarks
The Trademarks Act provides protection against counterfeit products. Section 135 of the act provides for civil remedies like an injunction, damages, rendition of accounts, etc while Section 103 identifies counterfeiting as a cognizable offense. Section 102 defines counterfeiting as falsification or false application of a trademark. Section 103 provides punishment which includes imprisonment up to 3 years and a fine up to 2 Lakh rupees. So, it is advisable to get your trademark registered for the smooth functioning of the business. It helps in building up a reputation in the market. It is advisable to take the help of an advocate while conducting a trademark search as it will prevent from choosing a similar trademark.