A trade mark, as currently recognized in India, is a visual symbol (in the form of a word, a name, a device, a symbol, or a label) which identifies any merchant’s or manufacturer’s goods or services and distinguishes them from similar goods or services of competitors in the trade.
It may include shape of goods, their packaging and combination of colors. Recently, non-visual signs have made a strong claim for recognition as trademark.
Smell and sound signs fall under such category though they are not yet recognized in India. Several broadcasting organizations and film producers have specific signature tunes to identify their programs.
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The Act makes a distinction between a trademark and a well-known trademark. If a substantial segment of public associates a trade mark with a particular class of goods and services, and if this trade mark is used for other goods or services, and the public is inclined to associate the new goods/services with the earlier goods/services, then the mark is a well known trade mark.
If the proprietor of a trademark is an association of persons, who do not make a partnership within the meaning of the Indian Partnership Act, 1932, the trademark is called a collective mark.
A special class of trademark is termed as certification trademark. These trademarks do not indicate the origin of the goods, but are certified by the proprietor of the mark as conforming to certain characteristics, like quality, ingredients, geographical origin etc. Agmark used for food items in India is a certification mark.
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A good Trademark as per Indian Law: A trade mark should be distinctive. Distinctiveness may be inherent or acquired. An invented word may be inherently distinctive as a trade mark e.g. RIN.
Other trade mark may have acquired distinctiveness through usage e.g. TATA, Reliance, Revlon. Most brands acquire distinctiveness through use. A brand may depend on the class of goods e.g. Hawkins and Prestige are two distinctive brands in pressure cookers.
If the trade name is a word, it should be short and easy to spell, pronounce and remember; if it is a device it should be expressible in a word.
The word should begin invented word. Zen, Avon, RIN, Flex are all fine examples. The mark can be denied if it is not considered distinctive.
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A trade mark consisting of parts of a chain wheel and chain to cover a business in chains and chain wheels is not considered distinctive. However, distinctiveness alone is not sufficient for registration of a trade mark. It may also depend on whether other traders, without any improper motives want to use the same mark.