June 19, 2019
The Trademark Act, 1999 enlists two essential ingredients of a trademark. They are as under:
- The Mark is Capable of Being Represented graphically– ‘Graphical representation’ has been defined under Section 2(1) (k) of Trademark Rules, 2007 as representation of a trademark for goods or services represented or capable of being represented in paper form and include representation in digitized form. Such graphical representation of a trademark also encompasses within its purview shape of goods, their packaging, combination of colours, in other words it brings within its ambit “trade dress”. This essential requisite for qualification as a valid trademark merely implies that the mark should be capable of being put on the register in a physical form and also being published in the Journal. This requirement of a valid trademark was further expounded by the European Trademark Office, wherein it elucidated two primary reasons for geographical representation a trademark:
- Enable traders to identify with clarity what other traders have applied for registration as trademark and for what product;
- Enable public to determine with precision the sign which forms the subject of trademark registration
- Capable of Distinguishing Good and Services of One Person From Those of Others- The definition of “trade mark” under Section 2(1)(zb)of the 1999 Act means a mark “which is capable of distinguishing the goods or services of one person from those of others”. Therefore, the use of a mark that is not capable of distinguishing the goods of such proprietor of the trade mark would not qualify for the protection under the TM Act. This requisite of a trademark primarily enumerates that a trademark must be distinctive i.e. it should not be devoid of a distinctive character.