Trademarks: Concept and Registration
History
A need for a law exclusively addressing trademark practice and procedure in India was sought for in the 19th century which eventually materialized into the Trademark Act, 1940.
The Trademark Act, 1940 predominantly reflected the provisions
incorporated in the UK Trademark Act, 1938. Subsequently, in the wake of
ensuing trade and commerce development, the Trademark Act, 1958 was passed to
address the lacunae being witnessed in the Trademark Act, 1940. The Trademark
Act, 1958 also consolidated the provisions associated with trademarks in the
Indian Penal Code, Criminal Procedure Code and Sea Customs.
The Trademark Act, 1958 was thereafter repealed by the
Trademark Act, 1999 which at present governs trademark law and practice in
India. The Trademark Act, 1999 was enacted with the intent to revise the Act in
congruity with latest developments witnessed in trading and commercial
practices, rapid globalization and for harmonization with International trade
laws.
Some of the major inclusions in the Trademark Act, 1999 inter
alia include:
• Provision
was made for trademark registration in respect of services in addition to
goods;
• Statutory
protection was extended to well-known trademarks;
• Widened
the scope and purview of ‘trademark’ in India;
• Provision
for registration of ‘collective marks’;
• Incorporated provision to prevent use of trademark as a corporate or trade name by third party.
Introduction
Trademark is a branch of intellectual property rights. Intellectual property rights permit people to maintain ownership rights of their innovative product and creative activity.
A trademark includes a name, word, or sign
that differentiates goods from the goods of other enterprises. Marketing of
goods or services by the procedure becomes much easier with a trademark because
recognition of product with the trademark is assured and easier. The owner can
prevent the use of his mark or sign by another competitor.
Trademark is a marketing tool which increases
financing of the business. A trademark is not always a brand but the brand is
always is a trademark. Sometimes there is confusion between trademark and
brand. The brand name can be simply a symbol or logo but the trademark is a
distinguishing sign or indicator in a business organization as it has a wider
implication than brands. People are more influenced by the distinctive
trademark that reflects the quality of the product. A trademark can be a logo,
picture mark or a slogan.
Definition of Trade Mark
The Trademark Act, 1999 under Section 2 (zb) defines “trade mark” as a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colors;
Furthermore, the Act also provided for definition of ‘mark’
under Section 2(m) which
enumerates a mark to include a device, brand, heading, label, ticket, name,
signature, word, letter, numeral, shape of goods, packaging or combination of
colors or any combination thereof.
Trademark is designated by:
• ™ (™ is used for an unregistered trademark.it is used to
promote or brand goods).
• ℠ ( used for an
unregistered service mark.it is used to promote or brand services).
• Ⓡ (letter R is
surrounded by a circle and used for registered trademark).
Essentials of Trademark registration
Two essential ingredients for Trademark registration:
I. The Mark is Capable of Being
Represented graphically–
‘Graphical representation’ is defined under Section 2(1) (k)
of Trademark Rules, 2007- “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 colors, in other words it brings within its ambit “trade dress”.[Reference: Rich Products Corporation And vs Indo Nippon Food Limited; CS (OS) 246/2004]
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
II. Capable of Distinguishing Good and
Services of One Person From Those of Others-
The definition of “trade mark” under Section 2(1)(zb)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. [Reference: Pioneer Nuts & Bolts Pvt. Ltd. v. M/s Goodwill Enterprises, FAO (OS) 334/2008]
This requisite of a trademark primarily enumerates that a trademark must be distinctive i.e. it should not be devoid of a distinctive character.
Expanding Boundaries of the scope of Trademarks
• Domain name
Every
company on the internet has a domain name with a different address in
cyberspace at which the website is located. The other purpose is that the
Internet has become an essential tool in marketing. The rule came to be
revealed as IP numbers are hard to remember therefore they came up with the
Domain Name System.
A
user of the internet will find the domain name very useful in finding the goods
or services that he expected to find. But sometimes a distinct name of a highly
commended business may be allowed and passed off as the original one, For
example, Tata, Google and Maruti. People visit a website or domain name through
a website or a URL.
The Indian judiciary has been proactive in the protection of
trademarks, and it has extended the protection under the trademarks law to
Domain Names as demonstrated in landmark cases of Tata Sons Ltd. v. Manu Kosuri
& Ors, [90 (2001) DLT 659] and Yahoo Inc. v. Akash Arora [1999 PTC 201].
• Smell
It is a non-traditional type of trademark.
There is a large problem in registering this type of trademarks as there is no
physical representation. Due to its high level of distinctiveness, for example,
the smell of a perfume strawberry etc., it is difficult to register this kind
of trademark. Smell marks are accepted if they are represented with a graphical
representation. But this provision is only in some countries. Smell the
trademark is protected under copyright. In some instances a particular scent is
also a commodity by itself in other circumstances it is a scent used or
attached to the commodity not the natural smell of the product itself.
- Sound
A sound may be trademark and can also be
registered. A sound mark is a sound or a theme with a different identification
effect. A well-known sound mark is music owned by Hemglass.
When applying for a sound mark the mark can be expressed by a sound file or by an accurate description of the sound in notation.
- Shape
Distinguishing the one product from another
assures that the customer doesn’t get confused by similar products. The shape
of goods registered as a trademark as long as the shape is not working. A shape
is working if it affects the use or performance of the product. The shape of
goods can be a trademark if,
• The shape doesn’t superior working.
• The shape has become connected with public and
manufacturer.
A shape of goods may be registered as a trademark when the shape is not working. Thus if a certain shape is delicate more than useful in daily life and serves no purpose then it may be registered.
Grounds for Refusal of Trademark Registration
I. Absolute Grounds for Refusal of Trademark
Registration
II. Relative Grounds for Refusal of Trademark
Registration
Absolute Grounds for Refusal of Trademark Registration
Section 9 of the Trademark Act, 1999 enumerates grounds on
which a trademark registration can be absolutely refused.
The trademarks which can be lacking any
distinctive characteristics or which consists exclusively of marks or signals,
which can be used in trade to indicate the kind, fine, quantity, supposed
grounds, values, geographical origin.
And also a time of production of goods or
rendering of the offerings or different characteristics of the goods or
offerings which consists solely of marks or indications which have come to be
average in the present language. That marks are not entitled to registration.
Except it is confirmed that the mark has in fact acquired a new character as a
result of use before the date of application.
The Act provides that following marks can be refused:
• Marks
that are devoid of any distinctive character; Marks which serve to designate
kind, quality, intended purpose, values, geographical origin or the time of
production of goods;
• Marks
which have become customary in the current language or in the established
practices of trade;
Exception- A foresaid mark shall not be refused
registration if prior to date of trademark application; the mark has acquired
distinctive character or is a well-known trademark.
• Marks
that may cause deception or confusion in public;
• Mark
comprises of matter that is likely to religious sentiments any class of people;
• Mark
comprises of scandalous or obscene matter;
• Mark
is prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950;
• If
the mark consists of shape of goods which results from the nature of the goods
themselves;
• Mark
consists of shape of goods which is necessary to obtain a technical result;
• Mark
gives substantial value to the goods;
• Mark
devoid of distinctive character
Test of Similarity
For the conclusion, if one mark is deceptively
similar to another the essential features of the two are to be considered.
Apart from the structural, visual, and phonetic similarity or dissimilarity,
the query needs to be viewed from the factor of view of man typical
intelligence and imperfect collection secondly. It’s regarded as an entire
thirdly it is the query of his impressions.
In Mohd. Iqbal v. Mohd. Wasim [AIR 2002 MP 162, 2001 (4) MPHT 357 ]it was held that “it is common knowledge that ‘bidis’ are being used by persons belonging to the poorer and illiterate or semi-literate class. Their level of knowledge is not high. It cannot be expected of them that they would comprehend and understand the fine differences between the two labels, which may be detected on comparing the two labels are common. In view of the above, there appears to be a deceptive similarity between the two labels”.
Distinctive
Character
The term “distinctive” was defined by Lord Halsbury as the
word ‘distinctive’ means distinguishing a particular person’s goods from
somebody else’s goods-not a quality attributed to the particular article but
distinctive in that respect that it means it is a manufacture of his as
distinguished from somebody else.
This requirement entails that a trademark should be of a distinctive character. While determining that a mark is distinctive or not, it has to be seen that the mark does not have a direct and close reference to the character and quality of applicant’s goods.[Shakti Vikas Sansthan v. Ayurved Vikas Sansthan, 1991 PTC 34 Del]
In order to ascertain whether one mark is deceptively similar to another it is not necessary to place the two marks side by side to find out if there are any differences. It would be enough if the impugned mark bears such an overall similarity to the registered mark as would be likely to mislead a person usually dealing with one to accept the other if offered to him.[Mumtaz Ahmed v. Pakeeza Chemicals, AIR 2003 All 114]
Acquired
distinctiveness of trademark
The Statute does not lay down the term of use that would be sufficient to determine whether a mark has acquired distinctiveness. However, the legal principle regarding the same has been settled through precedents. The Judiciary has rendered conflicting dictums on the extent of use required while proving acquired distinctiveness of a trademark.
In the case of Woodlands Travels and Agencies v. K. Vasudeva
Rao and Anr.[2003 (27) PTC 352 Mad] ,the Madras High Court stated that a mark cannot
acquire distinctiveness by using it for just a few days.
User for one year prior to application is not sufficient to acquire distinctiveness under Section 9 to qualify for registration under Section 9, the mark should have acquired distinctiveness by long user.[Reference: Sarda Plywood Industries Ltd. v. Deputy Registrar of Trademarks, 2007 (34) PTC 352 (IPAB) ]
East End Hosiery Mills Pvt. Ltd. v. Agarwal Textile Mills,
wherein the Court stated that there can be no hard and fast rule, that any
particular minimum period of time is required to acquire distinctiveness. In
some cases the time to acquire distinctiveness may be larger than in others.
However, in a recent verdict, the Delhi High Court in the case of ITC Ltd. v. Britannia Industries [CS (COMM) 1128/2016]has settled the principle regarding term of use by holding, that to acquire secondary meaning it is not necessary that product is in the market for number of years. If a new idea is fascinating and appeals to the consumers, it can become a hit overnight.
• Acquired
distinctiveness of trademark prior to date of application
The date at which the distinctiveness of a mark must be established is the date of the application and the rights of parties must be determined as on the date of application. [Reference: Swizzles Matlow Ltd. Application and McDowell’s Application (1927) 44 RPC 335]
• Acquired
distinctiveness is a question of fact
Whether a trademark has established acquired distinctiveness
or not is a question of fact. The question whether a word is or is not capable
of becoming distinctive of the gods of a particular maker is a question of fact
and is not determined by its being or not being descriptive. [Reference: United Iron and Steel Works v. Government of India, AIR 1967 P&H 64]
Relative Grounds for Refusal of Trademark Registration
Section 11 provides that a mark shall not be registered:
• If
the mark causes likelihood of confusion on part of the public i.e. likelihood
of association with the earlier trademark;
• If
the mark is identical to a well-known trademark in India and use of the later
mark may be detrimental to the distinctive character of the well-known
trademark;
• If
the mark’s use in India is liable to be prevented by law of passing off or
copyright law;
• The provision further envisages that where the goods are of different description refusal will not be justified but registration may be refused if the mark is likely to be deceptive or cause confusion.
Procedure and Duration of Registration
The registrar on the application made by the proprietor of the trademark in the prescribed manner within the given period of time with the adequate payment of fees. Registration of a trademark shall be of ten years and renewal of the registered trademark is also for a period of ten years from the date of expiration of the original registration or of the last renewal of registration.
The registrar shall send the notice before the expiration of last registration in the prescribed manner to the registered proprietor. The notice mentions the date of expiration and payment of fees and upon which a renewal of registration may be obtained if at the expiration of the time given in that behalf those conditions have not duly complied with the registrar may remove the trademark from the register.
The registrar shall not remove the trademark
from the register if implication made within the prescribed form and rate is
paid within six months from the expiration of registration of the trademark and
shall renew the registration for an interval of ten years. If the trademark is
removed from the register for non-payment of fee, the registrar shall after six
months and within one year from the expiration of the last registration of the
trademark renew the registration and also on receipt of implication in the
prescribed form and on payment of the prescribed fee the registrar restores the
trademark to the register and renew the registration of the trademark, for a
period of ten years from the expiration of the last registration.
Opposition proceedings
After advertisement of a trademark in the Trade Marks Journal,
(available at the website of Office of Registrar ) an opposition challenging
the application for registration can be filed by any person within a period of
3 months ( may be extended by a period less than 1 month).
Renewal of registration
The trademark is initially registered for a period of 10
years, which is calculated from the date of filing of the application and in
case of convention application, from the date of priority. The registration is
required to be renewed within 6 months before the date of expiry of the
registration, i.e., 10 years from the date of the application or subsequent
renewals.
The failure in renewing the trademark within the stipulated
period of time and a grace period of maximum 1 year granted for restoration of
the trademark, automatically leads to removal of the trademark from the
Register of Trademarks.
Rectification of Trademark
An aggrieved person may file an application before the Registrar of Trademarks or to the Intellectual Property Appellate Board for cancellation of registration of the trademark on the ground of any contravention or failure to observe a condition entered on the Register. The application for rectification can also be filed for removal of an entry made in Register, without sufficient cause or wrongly remaining on the Register and for correction of any error or defect in any entry in the Register.
Assignment, Transmission and Licensing of Trademarks in India
"Assignment" means an assignment in writing by an act of the parties concerned. While in case of licensing, the right in the trademark continues to vest with the proprietor, the assignment of the trademark leads to a change in the ownership of the mark.
A registered trademark is assignable with or without the goodwill in
respect of all or only some of the goods/services for which the mark is
registered. India is a member to TRIPS and
Article 21 of the TRIPS dealing with Licensing and Assignment
mandates that
"... the owner of a registered trademark shall have the
right to assign the trademark with or without the transfer of the business to
which the trademark belongs."
Section 39 of the (Indian) Trade Marks Act, 1999 allows for
the assignment of an unregistered trademark with or without the goodwill of the
business concerned.
Indian law contains embargo on the assignments of trademark, whether registered or unregistered, whereby multiple exclusive rights would be created in more than one person which would result in deception/confusion.
International registration of a trademark
The law of trademark passed by the Indian government is applicable only within the territory of India. The trademark which is registered in has effect only in India, for the protection of trademark in other countries needs to be registered in another country as well. Each country has its own trademark law with rules and law for the registration of a trademark in that country.
In other words, if an
individual desire to obtain trademark registration in any particular nation
then a separate application must be moved in all such international locations.
Within the year 2013, the Indian government agreed to the Madrid conference
which prescribes a methodology of submitting a worldwide application to the
contracting events from India by means of the workplace of the Registrar of
Trademark.
For example- India’s mobile phone
manufacturing Micromax received 1.25 millionth international trademark
registration for its trademark ‘MICROMAX’ protection in over 110 countries. The
international trademark registration for Micromax filed under the Madrid Protocol,
under mark can be protected in many jurisdictions by only filing an application
for
registration.
There are two methods by which an international application can be filed:
I. International application in each foreign country:
For the protection of trademark in any foreign country, an international application must be filed to the trademark office by following the rules and regulations of that country. For this purpose the applicant must hire a firm dealing in trademark registration in foreign, the applications to countries which is not a party to the Madrid system can be filed as per above. It provides services that engaging an Attorney in the foreign countries works closely for registration of a trademark in the foreign country.
II. The international application under the Madrid system:
The trademark registration may also be
initiated by means of filing an international application under Madrid protocol
before the Registrar of Trademark for different nations. The Indian Trademark
office collects international Trademark application and after finding it in
conformity with the Madrid protocol transmits such a global application to the WIPO
(World Intellectual Property Organization),
which further transmits it to the situation overseas. Each and every global
software is processed by way of the overseas nation as per their legislation
and all communications are routed by means of Indian executive.
Effect of Registration
The registration of a trademark shall if
valid give the exclusive right to the registered proprietor to the use of
trademarks in respect of goods and services of which the trademark is
registered, and also to obtain relief in respect of the infringement of the
trademark.
Trademark Passing Off
The Trademark Act, 1999 under Section 27 provides for the
remedy of passing off for misuse of an unregistered trademark by the Defendant.
It enumerates that no person shall be entitled to institute any proceeding to
prevent infringement of an unregistered trademark. The law further entails that
the provision shall not affect the rights of action against any person for
passing off goods or services as the goods of another person or as services
provided by another person, or the remedies in respect thereof.
Section 27 of the Act recognizes common law rights of the
trademark owner to take action against any person for passing of goods as the
goods of another person or as services provided by another person or remedies
thereof. The remedy made available under Section 27 protects the rights of the
proprietor of an unregistered trademark to register complaint against another
person for passing off his goods as goods the goods of proprietor. An
unregistered proprietor of trademark can also oppose an application for
registration on grounds as enumerated under Section 11 of the Act.
In an action of passing off, the Plaintiff has to establish prior use to secure an injunction and that the registration of the mark or similar mark in point of time, is irrelevant.
Classical Trinity Test in Passing off Action
Lord Oliver in the case of Reckitt & Colman Products Ltd.
v. Borden Inc. enumerated three elements for a successful passing
off action:
- Goodwill owned through trade;
- Misrepresentation;
- Damage to goodwill.
Thus, the passing action is essentially an action in deceit
where the common law rule is that no person is entitled to carry on his or her
business on pretext that the said business is of that of another.
The Supreme Court in the case of Cadila Healthcare Ltd. v. Cadila Pharmaceutical Ltd., laid down test of passing off and observed that a passing off action depends upon the principle that nobody has a right to represent his goods as the goods of some body. In other words a man is not to sell his goods under the pretense that they are those of another person.
As per Lord Diplock in Erwen Warnink BV v. J.Townend & Sons, the modern tort of passing off has five elements, namely
• a
misrepresentation
• made
by a trader in the course of trade
• to
prospective customers of his or ultimate consumers of goods supplied by him
• which
is calculated to injure the business or goodwill of another trade (in the sense
that this is a reasonably foreseeable consequence), and
• which
causes actual damage to a business or goodwill of the trader by whom the action
is brought or (in a quia timet action) will probably do so.
Further in the case of Corn Products Refining Co. v. Shangrila
Food Products Ltd, It was observed
that the principle of similarity could not to be very rigidly applied and that
if it could be prima facie shown that there was a dishonest intention on the
part of the defendant in passing off goods, an injunction should ordinarily
follow and the mere delay in bringing the matter to Court was not a ground to
defeat the case of the plaintiff.
Trademark Infringement
Infringement of a mark occurs when a person not being
registered proprietor uses a mark which is identical or deceptively similar to
a registered mark in relation to goods or services in respect of which the
trademark is registered.
If on comparison of the trademarks of the two parties in case the trademark adopted by the Defendant is identical to that of the Plaintiff, the Plaintiff may not be required to prove anything further. Section 29 of the Trademarks Act, 1999 statutorily mandates so as well. However, when the two marks are not identical, then the plaintiff would be required to establish that the mark used by the defendant so nearly resembles the plaintiff’s registered trademark as is likely to deceive or cause confusion in the minds of the consumer public.
I. Onus to prove infringement on Plaintiff
The Supreme Court in the case of Kaviraj Pandit Durga Dutt Sharma v. Navratna Pharmaceutical Laboratories held that in an action for infringement the onus would be on the Plaintiff to establish that the trade mark used by the defendant in the course of trade in the goods in respect of which his mark is registered, is deceptively similar.
II. How can the Plaintiff establish that mark is identical
or resembles?
This issue was elaborately discussed by the Delhi High Court in the case of Atlas Cycle Industries Ltd. v. Hind Cycles Limited, wherein the Court stated that in a case of trademark infringement, the plaintiff may establish that its trademark is identical with or so nearly resembles the plaintiff’s work either visually or phonetically or otherwise, that it is likely to deceive or cause confusion in relation to the case in respect of which the plaintiff got his mark registered.
III. Test of deception in trademark infringement cases
The Supreme Court’s decision in the case of James Chadwick
& Bros. Ltd. v. The National Sewing Thread Co. Ltd., can be regarded as an
essential obiter dicta which aided in streamlining the interpretation of
trademark infringement law in India. The Court in the case stated that in an
action of alleged infringement of a registered trade mark, it has first to be seen
whether the impugned mark of the defendant is identical with the registered
mark of the plaintiff. If the mark is found to be identical, no further
question arises, and it has to be held that there was infringement.
If the mark of the defendant is not identical, it has to be
seen whether the mark of the defendant is deceptively similar in the sense that
it is likely to deceive or cause confusion in relation to goods in respect of
which the plaintiff got his mark registered. For that purpose, the two marks
have to be compared.
IV. How to compare marks for deception?
In James Chadwick’s case, the Supreme Court held that to
ascertain deception between two marks the mark need not be placed side by side,
but by asking itself whether having due regard to relevant surrounding
circumstances, the defendant’s mark as used is similar to the plaintiff’s mark
as it would be remembered by persons possessed of an average memory with its
usual imperfections, and it has then to be determined whether the defendant’s
mark is likely to deceive or cause confusion.
Difference Between Trademark Infringement and Passing Off
The difference between a passing off action and an action for trademark infringement was expounded by the Delhi High Court in the case of Cadbury India Limited and Ors. v. Neeraj Food Products as under:
• An
action for passing off is a common law remedy whereas an action for trademark
infringement is a statutory remedy.
• Passing
off action in essence is an action of deceit that is, a passing off by a person
of his own goods as those of another whereas in case of infringement, the
Plaintiff on account of being registered proprietor of the disputed trademark,
claims to have an exclusive right to use the mark in relation to those goods.
• The
use by the defendant of the trademark of the plaintiff may be prerequisite in
the case of an action for infringement while it is not an essential feature of
an action for passing off.
• If
the essential features of the trademark of the plaintiff have been adopted by
the defendant, the fact that the getup, packing and other writing or marks on
the goods or on the packets in which the defendant offers his goods for sale
show marked differences or indicate clearly a trade origin different from that
of a registered proprietor of the mark, would be immaterial for the case of
infringement of the trademark. The liability of the defendant for such
infringement may be absolute. In the case of passing off, the defendant may
escape liability if he can show that the added material is sufficient to
distinguish his goods from those of the plaintiff.
The Supreme Court in a recent case of S. Syed Mohideen v. P. Sulochana Bai, stated that passing off right is a broader remedy than that of infringement. This is due to the reason that the passing off doctrine operates on the general principle that no person is entitled to represent his or her business as business of other person. The said action in deceit is maintainable for diverse reasons other than that of registered rights which are allocated rights under the Act.
Legal Remedies against Infringement and Passing Off
Under the Trade Marks Act, both civil and criminal remedies are simultaneously available against infringement and passing off.
Infringement of trademark is violation of the exclusive rights
granted to the registered proprietor of the trademark to use the same. A
trademark is said to be infringed by a person, who, not being a permitted user,
uses an identical/ similar/ deceptively similar mark to the registered
trademark without the authorization of the registered proprietor of the
trademark. However, it is pertinent to note that the Indian trademark law
protects the vested rights of a prior user against a registered proprietor
which is based on common law principles.
Passing off is a common law tort used to enforce unregistered
trademark rights. Passing off essentially occurs where the reputation in the
trademark of party A is misappropriated by party B, such that party B
misrepresents as being the owner of the trademark or having some
affiliation/nexus with party A, thereby damaging the goodwill of party A. For
an action of passing off, registration of a trademark is irrelevant.
Registration of a trademark is not a pre-requisite in order to sustain a civil or criminal action against violation of trademarks in India. In India, a combined civil action for infringement of trademark and passing off can be initiated.
Conclusion
Intellectual Property reflects the meaning that it’s subject body is the product of the mind or the intellect.
As it’s the product of a productive and
creative mind, It can be traded, purchased, given and reserved. All this can be
done but there are issues related that to be dealt. Trademarks are very
important aspects of Intellectual Property so, the protection of the trademark
has become essential in the present day because, every generator of a good or
service will want his mark to be different, eye-catching and it should be
easily distinguishable from others.
Designing a mark like this is difficult and
after this when infringing of the mark takes place it will cause maximum
difficulty to the producer. Capital Protection is very important and there should
be a step towards Global Intellectual Property Order, if there is no IPR
protection, it can be explained that inventive activity will terminate. The
reason for Intellectual Property protection is that it can arouse creativity
and discovery and prevent the exploitation of inventions.
Public policy here points at keeping an Intellectual Property system which promotes innovation through protection initiatives, while at the same time assuring that this is not at the value of societal interests. In this meaning, the challenge for the World Intellectual Property Organization would be to include public policy effects in applications carried out with developing countries, such as increasing awareness of flexibilities in existing international intellectual property treaties.
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