Identical trademark in India
A trademark (commonly known as brand names in common parlance) is a visual symbol that may be a source of goods, a signature, a name, a device, a label, an issue or a word indicating the colours or services used, or other commercial articles that Origin is to distinguish it from other similar goods or services. The trademark registration provides protection by guaranteeing the owner of the mark the unique right to use it or by authorizing another to use the same in return for payment. Trademark protection enforced by the courts, which has the right to block trademark infringement in most systems. Trade Marks promotes initiative and enterprise worldwide by rewarding trade mark owners with recognition and financial profit. What is your exact need?. Here, in this blog we will get to know about the Identical Trademark in India – Trademark Registration in Tirupur.
The same trademark is classified as any mark that is a reproduction of an already registered trademark. In order for a trademark registration to be considered the same trademark, it does not need to be an exact copy of the second mark. If all the elements of the sign are the same or if the sign, when viewed as a whole, contains differences which are not taken into account by the average person * with incomplete memory, then the mark will be considered the same.
The purpose of Section 25 (1) (a) of the Act is to prevent the trademark registration of the same or similar trademarks of other registered or outstanding trademarks with previous priority for the same or similar goods or services. When evaluating whether there are any possible quotations under section 25 (1) (a) of the Act, the examiner must consider:
Whether there is a similar mark attached to another registered, or whether it is the subject of a previous priority application;
Whether the same examination is in respect of the same goods or services as a mark under examination
Whether the mark under examination is the same mark in respect of similar goods or services.
Where the examiner believes that the criteria in section 25 (1) (a) of the Act apply, they should increase the relevant trademarks as a compliment against the application.
The European Court of Justice, in the following remarks, assists in the decision of the LTJ Diffusion SA v. SadasVertboudet SA case (C-291/00) to determine whether the trademark is similar to the second mark:
The mark is the same as the trade mark where it reproduces, without any changes or additions, the differences between all the components that make up a trademark registration or where seen as a whole are so negligible that it is not noticed by the average consumer.
When considering whether goods or services are identical, appreciation may be raised under section 25 (1) (a) of the Act where:
The full specification of the same mark is the same as the application under examination;
The specification of the same mark overlaps with the specification of the application under examination.
For example, the application is filed in Class 5 with respect to pharmaceutical preparations; pharmaceuticals for the treatment of asthma.
The “Pharmaceutical Preparations” part of its specification in the application will include “Pharmaceuticals for the treatment of coronary artery disease”, and in that case the application is in reference to the same goods of the same registered trademark. The same should be added to the registered trademark as a testimonial against application A under Section 25 (1) (a) of the Act. Specifications should cover similar goods and services and should not be construed to cover all events.
Real Time case
In 2004, in some cases, “same” was used as used in section 10 of the Trade Marks Act 1994 (“TMA”).
“Same” is used twice in Section 10, which refers to both the same marks and the same goods or services. The identification of goods or services, however, is largely a question of fact: a more interesting legal issue concerns the approach taken for the identification of marks.
The court’s appeal to Reed Executive PLC v. Reed Business Information Ltd. deemed “equal” in this regard. It refers to the guidance given by the European Court of Justice in LTJ Diffusion v. SadasVertboudet (Case C-291/00). The ECJ said that “the criteria for identifying a sign and trademark registration must be strictly interpreted”; all elements of the sign registered in it, without alteration or addition, require a new sign for reproduction. However, the ECJA said that the assumption of identity must also be taken into account by considering the average properly informed, observer and consumer of the circumstances. In doing so the court must keep in mind that the consumer gets an overall impression of the signals and is seldom given the opportunity to directly compare only their part: he “must have faith in his incomplete picture in his mind”. Also, they are more likely to pay less attention to certain goods or services than others. This means that minor differences between the two signals are noticed by the average two customers, and despite such small differences, that identity can be established.
The Court of Appeal observed inconsistencies in the ECJ’s judgment: it also held that there must be a strict interpretation of identity but that minor differences were allowed. The court’s decision of LTJ diffusion on appeal meant that a significant addition to the original mark hinders identification. This is a change in position under English law prior to the TMA, where even if the new sign contains the original sign and more, the sign may generally be the same as the registered mark.
The relevant mark was “Read Business Information”. The issue was whether this was the same as the “read” mark. Reed executives tried to argue that such “read” elements were identical, and that the additions “business information” were merely a description of the services offered, a similar sign. The court’s appeal, based on its earlier argument, rejected the notion that the words “business information” with capital initials were clearly part of the name, and added more than the average consumer could see. As a result there was no identification of the mark.
In order for someone’s enterprise to stand out in the market and create strong brand value, they must have their trademark registration. The law protects all registered trademarks in India, from violation and / or abuse. Given this fact, when creating a trademark to distinguish one’s goods or services from those of its competitors, one has to follow the rules laid down by the Act.