Growth of Intellectual Property Law and Trade Marks

157 Pages Posted: 31 Jan 2009 Last revised: 1 Feb 2009

Date Written: January 31, 2009

Abstract

The object of the trade mark is to make the goods of a manufacturer or trader known to the public as his and thereby enable him to secure in course of time such profits as may accrue from the reputation which he may build up for his goods by superior skill, efforts and enterprise. To the purchaser a genuine trade mark gives assurance of the make and the quality of the article he is buying. The concept of trade marks and the law governing the use thereof owe their origin to business competition, practice and custom.

Often considerable amount of money is spent in making a name or symbol popular through various media of advertisement. As a result, the trade mark may acquire great reputation, and may often become a stamp of quality and a symbol of origin. A good trade mark is he best sales man of the goods. Ever manufacturer or trader who has built up a reputation for his mark is naturally jealous of protecting it against piracy by unscrupulous competitors. Protection of trade marks is necessary not only for honest trader bur also for the benefit of the purchasing public against imposition and fraud.

At common law the reputation of a business, symbolized through a name or label, can be protected only by an action of passing off, the procedure for which is cumbersome and the outcome uncertain. Registration of a trade mark under Trade Mark Act, 1999 confers on the proprietor certain statutory rights which are fur more extensive than common law rights, and affords a convenient means of protecting those rights against infringement.

Action against infringement of trade mark has been made a statutory right under the Trade Marks Act. But the action against passing off of trade marks has only been recognized by the Act. The Act merely lays down the procedure to be followed in such an action. The substantive part constituting the principles and the grounds for such an action still form part of the common law, from which it has been adopted.

The project aims at analyzing the law relating to infringement and passing off of the trade marks. It aims at bringing out the difficulties that are faced by the court in deciding in an action of passing off, due to its common law origin and its want of being a statutory remedy.

The project ends with a few observation and suggestions put forward by me after analyzing the literature and the case laws on the subject. I suggest, registration of trade marks be made compulsory as to cover up lacunas created due to lack of binding principles in case of establishing a passing off action.

Keywords: Trade Marks Act, 1999, Infringement Action, Passing off action, International Conventions, Case laws

JEL Classification: K19

Suggested Citation

Chakraborty, Rahul, Growth of Intellectual Property Law and Trade Marks (January 31, 2009). Available at SSRN: https://ssrn.com/abstract=1335874 or http://dx.doi.org/10.2139/ssrn.1335874
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