Trade and Merchandise Marks act 1958

Given in the section hold good unless the context otherwise requires. Where the context shows an intention repugnant to the meaning given in the definition, the context must prevail. Otherwise the meanings given in the section must govern even though they may not trade, in any case, be identical with that given to the expression in its ordinary or legal use.

Assignment

Here refers to assignment by act of parties as distinguished from assignment by operation of law. The definition was not contained in the act of 1940.

Associated Trademark

Section 16 provides that trademark registration as associated trademarks. Section 44 provides for assignment and transmission of associated trademarks.

Sub-section (1)(e) – “Certification Trade Mark”

In the English act, this term “Trademark” are both defined in the same clause. Under the Indian Act, however, this term is not included in the expression “Trademark”. The English act defines the term as “a mark registered or deemed to have been registered under 37 of the old English Act.

Deceptively Similar

This term is new. It is not defined in the English Act also. From the definition it is plain that both the trademarks (‘DO CHIRI’ and ‘DO KABUTAR’ in the instant case) should be exactly similar. Sub-section (1)(i) – “Fake Trade Description”

This definition is new. Section 480 of the Indian Penal Code defines the use of a false trademark. The section runs as follows:

Whoever marks any goods, or any case, package or other receptacle containing goods, or use any case, package or other receptacle with nay trademark thereon in a manner reasonably calculated to cause it to be believed that the goods so marked or any goods contained in any such receptacle so marked have a connection in the course of trade with a person with whom they have not any such connection, is said to use a false trademark”.

Goods

Under the definition, things which form the subject of trade of manufacture, are goods. Without its being applied to goods, there can be no trademark. For example, marks put on goods like paper, matches, ghee, chemical preparations, soaps, textiles, hosiery and so on, which are manufactured and sold under the said marks in the open market, will be trademarks. A mere service trademark or property mark could not be a trademark.

Limitations

Limitation means any kinds of restrictions which may be placed on the complete right to the use of trademark given by registration of a person as proprietor thereof. Some kinds of limitations are set out in the definition but they are not exhaustive but merely innustrative. The limitations indicated in the definition are as to:

Mode of user

Use in relation to goods to be sold or otherwise traded within India.

Goods to be exported to any market outside India.

The trademarks register should contain entries as to limitations, conditions and disclaimer.

Technical trademark

Technical trademark is a word, device or symbol lawfully appropriated by a manufacturer or trader to distinguish his specific products, the primary purpose of which is to indicate the goods and not to distinguish a particular trade, style, or size of the manufacturers products, and it must be capable of distinguishing one’s articles from all others with respect to origin to ownership.

Device

 Is that which is devised or designed a contrivance an emblem a motto.

Brand

Is a trademark, made by burning or otherwise as on casks; a particular class of goods as if distinguished by a trademark. A brand may be impressed in several ways-by water marks on paper (e.g. Tiger Brand, Elephant Brand)

Headings

Ordinarily understood, it is title indicating the subject-matter to follow. As applied to trademarks we hear of line headings in the cotton trades.

Label

Is defined as an attached brand or strip, a small strip placed on or near anything to denote its nature, contents, ownership, destination, etc.

Blanks in registered labels

 As regards blanks in registered labels Kerly states. It is common practice to register labels with blank spaces which in use are filled up by matter which is either not capable of registration, or which for some other reason it is not convenient to register, because, for example it is changed from time-to-time.

The practice is unobjectionable, and the use of the additional matter, which forms of course no part of the trademark protected by registration, does not interfere with the protection of the label as registered.

Ticket

A ticket is a card, slip or placard serving as a token of any right. The difference between a ticket and a label is that the former is attached to the goods by pinning or stitching, whereas a label is pasted to the goods.

Letter

Combination of Letters is readily accepted while a single letter is rarely used or accepted as distinctive.

Numeral

A trademark consisting of numerals is distinctive and can be registered for goods, not only for textiles, on proof of their extensive use.

Colour

Mere use by the defendant of the colour adopted by the plaintiff is not objectionable so long as the trademark itself is not imitated. The plaintiff has no monopoly of a colour. But a colour impressed in a particular design, such as circle, square, triangle, cross, or star or used in connection with other characters, may be appropriated as a trademark.

 Sub-section – “Name”

A name may be a mark registrable if distinctive. It includes the abbreviation of a name. The abbreviation of the name of a firm is equated to the name itself. “Mark” includes a name and “Name includes its abbreviation. Name may be a firm, company or individual, of a premises or of an article.

Sub-section – “Package”

Package includes any case, box, container, covering, folder, receptacle, vessel, band, ticket, reel, lid, cap, cork and stopper.

Sub-section (1)(r) – “Permitted Use”

The use must be in respect of a registered trademark and must comply with the conditions and restrictions to which the subject of trademark registration.

Sub-section (1)(s) – “Prescribed”

This term means, as regards proceedings before a high court, ‘prescribed by rules framed by that court and otherwise the term means prescribed by rules made under this act.

Sub-section (1)(t) – “Register”

This means the register of trademarks referred to in sub-section (1) of section 6.

Sub-section (1)(u) – “Registered”

Provisions of the act, for purposes of the act the term means “registered under the act”.

Sub-section (1)(v) – “Registered Proprietor”

The term can only refer to a person who is actually on the register.

Sub-section (1)(w) – “Registered Trademark”

The term again means a trademark which is actually on the register. It cannot apply to a trademark which was once registered but which has been removed from the register for any reason under the act.

Sub-section (1)(x) – “Registered User”

This section lays down the formalities to be complied with for registration. Under this definition “registered user” is therefore stated to mean registered use for the time being registered as such.