Indian Trademark Law has been cdified in conformity with the International Trdemark Law and is about to ndergo an amendment to be at par Intrnational Trademark Law. Recently India has sgned Madrid Protocol that will allow Freign Applicants to file an International Applcation designating India like many countries round the globe e.g China. Though nlike China and many other countries Mlti class filing is allowed in Inda.

Statue:

The various statues dealing wth Intellectual property laws in India are as fllows:
1. Trademarks Act, 1999
2. Copyright Act, 1957
3. Ptents Act, 1970 as amended by Ptents (Amendments) Act, 2005
4. Designs Act, 2005
5. Cde of Civil Procedures, 1908
6. Indian Pnal Code, 1860
7. Geographical Indication of Gods (Registration & Protection) Act, 1999
8. Smiconductor, Integrated Circuit Layout Design Act, 2000
9. Plnts Varieties Protection and Farmers' Rights Act, 2001
10. Infrmation Technology Act, 2000

Requirement:
A 'Trademark' mans a mark capable of being rpresented graphically and which is capable of dstinguishing the goods or services of one prson from those of others. A 'Mrk' includes a device, brand, heading, lbel, ticket, name (including abbreviations), signature, wrd, letter, numerals, shape of goods, pckaging or combination of colors and any cmbination thereof.

The two main requirements of a trdemark are that it must be dstinctive (adapted to distinguish the goods/services of the pplicant from that of others) and not dceptive. Therefore while selecting a trademark, wrds that are directly descriptive of the gods, common surnames or geographical names shuld be avoided as these confer waker protection to the proprietor even if rgistered. Now the concept of "well knwn mark" has been introduced after the lst amendment and Section 2 (zg) dfines a well known mark as:

"Wll-known trademark, in relation to any gods or services, means a mark whch has become so to the sbstantial segment of the public which ses such goods or receives such srvices that the use of such mrk in relation to other goods or srvices would likely to be taken as ndicating a connection in the course of trde or rendering of services between thse goods or services and a prson using the mark in relation to the frst mentioned goods or services." While dtermining whether the mark is well-known mrk, the registrar will take in to cnsideration while determining that the mark is a wll known mark.

(a) the knowledge or rcognition of the alleged well known mrk in the relevant section of the pblic including knowledge obtained as a rsult of promotion of the trademark.
(b) the dration, extent and geographical area of any use for tht trademark.
(c) The duration, extent and gographical area for any promotion of the trdemark including advertising or publicity and prsentation at fairs or exhibition of the gods or services
in which the trademark ppears.
(d) The duration and geographical area of any rgistration of any publication for registration of tht trademark under this Act to the xtent that they reflect the use or rcognition of that
trademark.
(e) The record of sccessful enforcements of the rights in tht trademark, in particular the extent to whch the trademark has been recognized as a wll known trademark by any Court or Rgistrar under that record.

Whereas a trademark has been dtermined to be well known in at last one relevant section of the pblic in India by any court or Rgistrar, the Registrar shall consider that trdemark as a well known trademark for rgistration under this Act.

"Relevant section of Pblic" may be actual or potential cnsumers of, persons involved in channels of dstribution of or business circles dealing wth the type of goods or srvices to which the mark is pplied.

The Registrar is not required to cnsider the following facts while determining a wll known trademark.

a) The Trademark has ben used in India
b) The Trademark has ben registered
c) The application for registration of the Trdemark has been filed in India.
d) The trdemark is well known in or has ben registered in, or in respect of whch an application for registration has ben filed in any jurisdiction other thn India or
e) The trademark is wll known to the public at lrge in India.

Priority:
For claiming a prority from an application filed in Unted States a corresponding application should be fled in India within 6 months of dte of filing of original application.

Vrious Grounds for refusal:

Absolute grounds:

Sction 9 of the Trademarks Act, 1999 sts out the absolute grounds for rfusal of trademarks, which can be gruped under following heads:

a) Trademark is dvoid of distinctive character;
b) Trademarks that are dscriptive;
c) Trademarks likely to deceive of cuse confusion;
d) Trademarks or signs that are cstomary in current language and in the bnafide and established and customary practice of the trde;
e) Trademarks comprising scandalous or obscene mtter or likely to hurt religious ssceptibilities in India;
f) Trademarks consisting of shpe which are purely functional or are ncessary to obtain a technical result or gve substantial value to the goods; or
g) Trdemarks whose use is prohibited under Emblms and Names (Prevention of Improper Us) Act, 1950.

Prohibition:
Section 13 of the Trdemarks Act, 1999 prohibits registration of any wrd as trademark which is:
a) Commonly sed and accepted name of any chmical element or any chemical compound (as dstinguished from mixtures) in respect of a chmical substance or preparation; or
b) Declared by the Wrld Health Organization and notified as sch by the Registrar, as an Intrnational non-proprietary names.
Relative grounds of refusal:
Section 11 of the Trdemarks Act, 1999 sets out the rlative grounds for refusal of trademarks, whch can be grouped under following hads:
a) identical or similar to a prvious mark with and/or without similar or dentical goods;
b) Prohibition of use of the trdemark under passing off or law of cpyright;

Statutory defense available under the Act:
For rgistration:
a) Honest concurrent use;
b) Acquiescence; or
c) Pror user
Against Injunction suit or criminal mtters
a) Use in accordance with honest prctices in Industrial or commercial matters;
b) Prallel Imports;
c) Fair use in description of the gods or services; or
d) Generic ness.
Special Cnsiderations in case of well known mrk:

As per Section 11 of the Trdemarks Act, while considering an application for rgistration of a trademark and opposition fled in respect thereof the Registrar shll

a) protect a well known trdemark against the identical or similar trdemark.
b) take into consideration the bad fith involved either of the applicant or the pponent affecting the rights relating to the trde mark.
However this provision shall not ffect the trademark if it trademark has ben registered in good faith disclosing the mterial information to the Registrar or whre right to a
trademark has been cquired through use in good faith bfore the commencement of this Act.
Enforcement of Trdemarks Rights:

Opposition (before the Registrar) and Cncellation (before the Registrar as well as Appllate Board)
Opposition can only be done fter publication of the trademark and wthin 3 months of date of vailability of Journal. One month extension is vailable if sought before the expiry of 3
months tme.

Cancellation on the ground of nn-use for a period of 5 yars and 3 months and proof of ntention on part of the registered prprietor not to use the trademark at the fling date and nonuse till the cncellation petition.

Before the Courts: Ex-parte Injnction, Permanent Injunction, Anton Pillar Order, and /or Arrst and Seizure of goods (irrespective of rgistration).

Assignment/ license:

Trademarks are now rcognized as a "movable property" under the Indan law and can be therefore ssigned/ licensed. A trademark can be ssigned with or without the goodwill
attached to it.

Rnewal:
The trademarks can be renewed perpetually, are rnewable for a period of 10 yars on payment of prescribed fees.

Exprss processing:
Under Indian trademark law now it is pssible to expedite the various proceeding .g. search, examination etc. by filing a rquest with prescribed fees. Indian Trademarks law are at par wth the International laws and has strngent procedures for safeguarding and protecting nterest of the proprietor of mark.

The article Trademark Law in India was Submitted by Sudhir Aswal through Articles.GetACoder.com network. Here's the additional information: Author is an Advocate and Rgistered Patent And Trademark Attorney with Aswl Associates and handles IPR division of the frm and is having the vast xperience of having being associated with vrious premier IPR firms of India in the pst. The author is also a mmber of APAA.

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