What cannot be Protected Under Trademark Law

Q

What Cannot be Protected Under Trademark Law

Not every type of trademark is guaranteed to be protected. A sign which is not distinctive or sign refused will not be protected under Trademark Laws. However trademark abandonment is a common way to lose rights in a trademark.

A trademark is a sign which is used to distinguish its products from other products or services. The unauthorized usage of a trademark by producing and trading is called brand piracy.

The owner of a trademark has a firm hold in taking a legal action against trademark infringement.

To help prevent loss of your rights in a mark, follow these trademark rules:

  • Use trademark as an adjective.
  • Do not modify a trademark from its possessive form (e.g. LEVI’S jeans, not LEVI jeans)
  • Avoid using marks as verbs or nouns.
  • Do not pluralize singular marks.

However, the most common way to lose rights in a trademark is to stop using it with no intention to use or copy it again. This is known as abandonment. The owner can lose a mark if it is not used for 30 years.

Can a Trademark be Generic?

A generic term describes an entire group or classes of goods and that is the common name given to any material. Following are some examples:

  • There are many brands of shoes like Nike, Adidas, and Columbus, but there is no brand of shoes, that is only known as shoes.
  • In the case of watches, no watch is simply referred to as a wrist watch, unless it is known as Sonata watch or Titan watch.

The customer is trained to see the generic term used in the synchrony with a trademark (for example - Adidas shoes, Titan watch).

However, some brands are used as generic in general like Aspirin, Kerosene etc. They all are brands but acts as generic.

Why should a Trademark be distinctive?

The sign of a trademark used must be distinctive so that it cannot affect another brand. Some companies or business organizations deceive people by making a similar sign or trademark of a reputed company.

It creates confusion amongst the customer, and it leads to affect the company’s reputation.

A descriptive trademark cannot be protected unless the author can prove that the customer is aware of the mark and associated with product or service.

When someone attempts to register a trademark, the registrar of trademarks will ask for proof submission of distinctiveness or move the application from Principal Register to Supplement Register. If the applicant fails to submit the proof, the application will get rejected.

Can a shape be trademarked?

The sign mark overlaps with the intellectual property rights such as patent law or design law. For instance, a consumer must consider the shape of a chair or lamp as a design rather than use it as a trademark. This law describes this as follows:

The shape of a chair cannot be a trademark if it:

  • Is defined by the nature of the goods themselves.
  • Gives a substantial value to the goods or
  • Is necessary to obtain a technical regret.
  • In some cases, a shape mark lacks distinctive character. The sign is contrary to public order and morality, but this is a very rare ground for refusal of trademark registration.

As mentioned, do hold an understanding of your end assets that cannot be protected under the trademark law of India. 


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