Trademarks are signs, letters, emblem or words which associate themselves with certain goods or services and assist in distinguishing goods and services within their industries. Trademark is a form of property; they are considered intellectual rather than commercial property but can be extremely valuable to their owners,1Dorothy Cohen. (1986). Trademark Strategy. Journal of Marketing, 50(1), 61-74. doi:10.2307/1251279 because they carry with themselves goodwill.
Trademark is not a modern phenomenon; it has existed for ages. It is as the nomenclature suggests a mark of trade. To simplify it even further, when a tradesperson marks the goods they trade in as theirs, that mark is known as a trademark. It is an identifiable mark which may be a logo, or an abbreviation for the trader or a symbol the trader uses.
We know that trading has existed for centuries. The first instances of trademark occurred about 5,000 years ago during the stone age. It is said that during this time livestock was branded to identify them as personal property. This was done to prevent theft. 2Trademarks Past and Present, www.wipo.intAlthough this doesn’t exactly fit into the current definition of a trademark, you get the idea.
Evolution and History of Trademark
The task of pinpointing the first case of the trademark is almost impossible. Instead, we can do the next best thing, that is, explore the earliest example. One of the earliest known examples dates back to 5000 BC. During this era, in China pottery was quite popular. The pottery contained the name of person who created it as well as along with the location. 3Abraham S. Greenberg, The Ancient Lineage of Trade-Marks, 33 J Pat Off Soc’y 876, 878 (December, 1951) This fits as a good example under the modern definition of trademark. Even Greek pottery was trademarked. At the base of the product appeared a mark to signify its origin. 4Joseph Kohler, Das Becht des Markenschutzes (1884)
An interesting account is that of Rome, here also trademark started with marks and dates on pottery. Later, spread to ceramics and other things. The trademarks mentioned not only the name of the maker but also the address where the products were formed. It is believed that this was mandated by the government to regulate the quality of products and to punish those who produced faulty products or hold them responsible for any losses. 5 Daphne Robert Leeds, Trademarks-Our American Concept, 46 TMR 1451, 1452 (1956)
This was the story of the ancient times. Throughout this era trademarks were not for the purpose of law and order, but for commerce. As, the formal establishment of law and order was absent at that time.
As at any time, even during the middle ages – trade was blooming. The middle age began after the collapse of the Roman Empire. The middle age era is dated to be from 400’s to 1400’s. During this time the system of law and order was much advanced as compared to the ancient ages.
The municipalities in Europe grew independent. Across Europe great trade and craft guilds were being formed. This led to a system of governance and regulation for the purpose of ensuring quality of products. Later on, these were separated into – trade guilds and craft guilds. The guilds required their members to mark their products. The master tradesmen/craftsmen were required to choose their mark and all of their products were marked. The guilds did this assert market control and dominance. 6Edward S. Rogers, Some Historical Matter Concerning Trade-Marks, IX Mich L Rev, 36 (Number 1, 1910)
There are two types of formats followed in different countries i.e. – common law and civil law. India follows common law, much like most countries that were under the British Rule. Till date India continues to follow this system and depends on the landmark cases decided by England for jurisprudence purpose.
The English Parliament in 1266, enacted a law which mandated every baker to mark their bread so that the customers would know whose bread they were eating. 7Abraham S. Greenberg, The Ancient Lineage of Trade-Marks, 33 J Pat Off Soc’y 876, 878)Then in 1366 London the mandate was that every silversmith had to have a mark which was to be known. 8Ibid
Although England had some laws relating to trademark in place, there was no comprehensive legislation for protection until 1905. Although in 1875 the Trade Mark Registration Act was enacted. The current legislation governing trademark in England is the Trade Marks Act 1994.
Contemporary Use of Trademark
Earlier trademark was used to ensure quality of products. Today, it has become so much more. There are different regulations in place for quality of goods and services; and to ensure that consumers are not being cheated; and for market regulation, etc. The use of trademark has changed substantially. Now, it is more to do with the companies that provide these goods and services. Trademark is used for the benefit of the companies rather than the consumers.
Globalization has enabled businesses target markets cross-nationally, this has resulted in escalating competition. Products and services are being consumed at a significant momentum; this consumerism has led to an increase in the value of branding. What stands necessary in light of the above mentioned is the registration of a brand this is trademarking a brand name which essentially means registering a brand.
A trademark serves the purpose of identifying the source of origin of goods.9B.L Wadhera, 3rd Edn. Law relating to Patents Trade Marks copyright Designs & Geographical Indications pg. 167
Another word for brand is mark. So, branding that is a common practice these days is nothing but trademarking. From MNC’s to local start-ups all businesses use trademarks. Trademarks are becoming a very valuable intellectual property. For example –the colourful google trademark is worth a whopping $44.3 billion, the signature apple trademark is worth $29.5 billion. This is because trademarks are the easiest way to identify a company.
You might not remember the tagline, or the product or even the name. What you will remember is the trademark. Trademarks are so popular these days that there are logo quizzes designed solely on the basis of these trademarks.
Varied countries have different laws governing Intellectual Property, these laws result in registration of trademark within the territory of that particular country. But since the world is becoming a global village is that enough?
Globalization called for an international system of trademarks, this led to the Madrid Protocol which consists of two treaties for International registration of trademarks, which are Madrid Agreement Concerning the International Registration of Marks of 1891, and the Madrid Protocol of 1989. This protocol is administered by the International Bureau which is World Intellectual Property Organization (WIPO) located at Geneva, Switzerland formed on 14th July 1967 it operates under the aegis of United Nations Economic and Social Council. This treaty essentially is procedural and not substantive, since it contains provisions mainly for filing.
The Madrid System offers individuals and businesses a unique opportunity to obtain and maintain protection for their marks in more than 110 countries.10http://www.wipo.int/.Through the Madrid System, brand owners may file a single international application to seek trademark protection in multiple member countries. This streamlines the process of obtaining and managing international trademark registrations, which saves time and money.11www.wipo.intWIPO’s Madrid System has recorded its 1.5 million international registration, marking an important milestone for the International Trademark System that provides a convenient and cost-effective solution for registering and managing trademarks in up to 122 countries.12http://ww.wipo.int
The registration of international trademark functions as any local registration would, wherein you submit the trademark to the Intellectual property office, it will then be published in WIPO Gazette of International Trademarks, and if there is no objection raised regarding the trademark then the International Bureau (WIPO) will notify the contracting party, which may refuse to allocate protection to the international trademark, required that it informs the International Bureau of the same within the stipulated period. The international trademark will endure local protection for a period of 10 years and is subject to renewal.
The very first legislation dealing with trademark in India was the Indian Merchandise Marks Act, 1889. This act was in place for about 51 years, after that it was replaced by Trademarks Act 1940. This Act was the first legislation which provided from registration of trademark and for the protection of registered trademark. This Act become obsolete after world war II. After India obtained independence the Act of 1940 was replaced in 1958 by Trade and Merchandise Marks Act 1958.
Currently, in India the law for Trademark is contained under Trademark Act, 1999 the assent by the president was given on 30th December, 1999 and it came into force on 15th September, 2003 the act has been amended once in 2010. Before India gained independence the Trademark Act, 1940 was followed which contained principles of common law and equity as prevalent in England at that time.
The Indian Parliament to conform to the Protocol enacted Trade Marks (Amendment) Act, 2010 which contains special provisions protection of trademark through international registration.
The Trademark Amendment Act, 2010 added ‘Chapter IVA – Special provisions relating to protection of trade marks through international registration under the Madrid protocol
How to obtain a trademark?
As technology is taking over, even the process to obtain a trademark has become easier. Nowadays, we have an easy to access e-filing system. The government has made the process of e-filing a cakewalk by uploading a step by step guide at – ipindiaonline.gov.in/.
For any legal person to use the Madrid System they have to fit into one of the four categories –
- Industrial or commercial establishment
When it comes to filing for an international trademark – you can file an international application, online, at the IP India15http://www.ipindia.gov.in/trade-marks.htm based on your Indian trademark.16www.ipindia.nic.in/ The application is then sent to WIPO, then the member countries are notified of the international trademark.
if any member doesn’t convey any objection within a period of 18 months from the date of notification of
the international registration then the mark under international registration is deemed protected
within the territory of that member. It works as a proxy – as if the international trademark has been registered directly with the IP office of that member.17Ibid
Times are changing. The world is becoming a global village. We need to move forward and embrace this change. As the market for MNCs grows the need for international trademark also grows. The need for the international trademark is growing with the growing globalization. It is most beneficial for any organization that wishes to have a global impact to have an international trademark.