A trade mark (popularly known as brand name in layman’s language) is a visual symbol

which may be a word to indicate the source of the goods, a signature, name, device, label,
numerals, or combination of colours used, or services, or other articles of commerce to
distinguish it from other similar goods or services originating from another. It is a distinctive
sign which identifies certain goods or services as those produced or provided by a specific
person or enterprise. A trade mark provides protection to the owner of the mark by ensuring
the exclusive right to use it or to authorize another to use the same in return for payment. The
period of protection varies, but a trade mark can be renewed indefinitely beyond the time
limit on payment of additional fees. Trade mark protection is enforced by the courts, which in
most systems have the authority to block trade mark infringement.
Functions of Trademark

A trade mark performs five main functions:

(a) To identify the origin or source of goods and services and distinguish them from similar
products or services of other enterprises. Trade Marks facilitate the choice to be made by the
consumer when buying certain products or making use of certain services.
(b) To signify that all goods bearing the same trade mark have a single source.
(c) To signify that all goods bearing the same trade mark are of the same quality. However, it
is to be understood that there is no legal obligation on the trade mark owner to maintain a
specific quality. In fact the House of Lords, UK has approved application of some trade mark
to products of different quality in different countries. The brand owner is free to enhance or
reduce the quality of the product. The check against deterioration of quality lies with the
consumer. If a brand does not give at least the quality that the consumer associates with it,
she will switch on to another brand. However, the brand owner is bound to offer the quality
features as declared under trade description.
(d) To serve as the principal instrument in advertising and selling of goods and services.
(e) A fifth function, particularly in the case of registered trade marks, has acquired
importance over the years, viz. to protect the trade and business interests of the owner of the
brand, as also the goodwill associated with the brand, in case of infringement of trade mark.
Trademarks play a vital role in shaping successful businesses and
fostering trust in the marketplace because they identify and differentiate
goods or services, build brand recognition and reputation, protect
consumers from confusion, provide marketing and advertising tools, offer
a competitive advantage, and function as valuable intellectual property
assets.

Source identification: The primary function of a trademark is to identify

and distinguish the goods or services of one business from those of
others. It helps consumers recognise and associate specific products or
services with a particular brand, indicating the source or origin of the
goods or services.

Brand recognition and reputation: Trademarks play a crucial role in

building brand recognition and reputation. A strong and well-known
trademark helps establish trust, loyalty, and positive brand associations
among consumers. It serves as a symbol of quality, consistency, and
authenticity.

Consumer protection: Trademarks provide protection to consumers by

enabling them to make informed choices. When consumers see a familiar
trademark, they have certain expectations about the quality, features,
and performance of the associated products or services. Trademarks help
prevent confusion, deception, and misleading practices in the
marketplace.

Marketing and advertising: Trademarks serve as valuable marketing

tools. They can communicate messages, values, and positioning of a
brand in a concise and memorable manner. Trademarks can create brand
awareness, attract consumers, and differentiate products or services from
competitors.

Competitive advantage: Trademarks give businesses a competitive

edge in the marketplace. A distinctive and well-protected trademark can
make it difficult for competitors to imitate or create confusion with the
brand. It helps establish a unique identity and can contribute to the
success and growth of a business.

Intellectual property asset: Trademarks are valuable intellectual

property assets that can be bought, sold, licensed, or used as collateral.
They contribute to the economic value of a business and can be a
significant factor in attracting investors, securing financing, or entering
into partnerships.

In summary, trademarks perform important functions in identifying the

source of goods or services, building brand recognition and reputation,
protecting consumers, facilitating marketing efforts, providing a
competitive advantage, and serving as valuable intellectual property
assets.

Functions of Trademarks in India

A trademark is a brand name or logo associated with the company’s
goods, products or services. The consumers who buy the goods or avail of
the services recognise it with its brand. The brand or trademark may
consist of words or numerals, designs or a combination of all.

A trademark can distinguish the goods or services of one person or

company from those of others. They are intellectual property rights in
India. The Trademarks Act, 1999, regulates the registration and functions
of a trademark.

Primary Functions of Trademarks

A trademark primarily serves the purpose of identifying the origin or

source of goods, products or services. In India, a trademark performs the
following functions:

 It identifies the product and its origin

 It proposes to guarantee the quality of the product

 It advertises the product as it represents the product

 It creates the image of a product in the minds of the public,

especially the consumers or the prospective consumers of the
product

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Product Differentiation Function

Trademarks serve as the basic means of achieving product or service

differentiation. The trademarks enable a customer to distinguish goods,
products or services in the market without confusion and make him/her
arrive at a decision on what to purchase.

In perfect competition, trademarked services or products of various sellers

are the perfect substitutes for a buyer. But in product differentiation
competition, such trademarked services or products are just close
substitutes. The competition takes place in building brand loyalty and
advertising effort based on the non-substitutability of the services or
products.

For example: The advertisers of the brand ‘Surf’ seek to build an image
that the ‘Surf’ brand has qualities that cannot be replaced by any other
detergent and all the other detergents like ‘Ariel’ or ‘RIN’ possess different
quality or characteristics. A message is built up that the customer is
looking for the product ‘Surf’ and not just a detergent.

Identification of Source and Origin Function

One of the most important functions of a trademark is to serve as

information to the customers for identifying the origin or source of a
product. The trademark guarantees the identity of the origin of the
trademarked services or goods to the consumer or end-user. It enables the
consumer to distinguish the trademarked goods or services from others
that have another origin without any confusion.

Under the Trademarks Act, 1999, a trademark must be distinctive to fulfil

its identification of origin function. When the trademark is distinctive, it is
granted registration and protection under the trademarks law in India. The
Registrar of Trademarks can refuse the trademark registration when the
mark is not distinctive, and thus, the trademark will fail to perform its
function of identifying the source. Trademarks get legal protection under
the Trademarks Act, thus making it difficult for third parties to intimate or
copy the product.

The Trademarks Act also safeguards the trademark since it prohibits any
identical or similar use of the trademark by its competitors in the market,
who may take advantage of the reputation and position of the trademark.

For example: The trademark ‘Brooke Bond’ identifies tea originating from
a company manufacturing tea and marketing it under that trademark.

Quality Function

A trademark ensures customers of the quality of the trademarked

products or services. Customers select goods or services known for their
quality. Thus, trademarks help the customers decide the products they
need to purchase or the service they need to avail of. Reputation and
identification of quality are the key features of trademarks.

Customers often use trademarks to identify and choose products or

services with quality. When a customer has a good experience with a
trademarked product, he/she will prefer to use the same product having
the same trademark. A customer will re-purchase a product again as
he/she will believe the trademarked product will have the same high
quality that it had when it was purchased previously.

For example: The quality of tea sold in the packs trademarked as ‘Brooke
Bond’ would be similar, but they would be different from tea labelled with
the trademark ‘Taj Mahal’.
Advertising Function

The trademark represents a product or service. Another significant

function of trademarks is promoting products and services, thus providing
an effective mode of advertising them. The intention of the use of
trademarks is to make consumers aware of the trademark and attract
their attention to the trademarked products or services. Customers can be
attracted through advertisements, which reinforce the image of a product
or service.

Trademarks are used in marketing and advertising campaigns to establish

positive associations and brand recognition. The trademark or logos act as
a visual cue for the services and goods of a company and thus set it apart
from its competitors. Companies can achieve brand recognition
successfully by using a logo or slogan.

For example: The trademark of ‘Sony’ is associated with electronic items.

Thus, customers associate the trademark ‘Sony’ with a particular quality
of a particular class of goods. It advertises the product while
distinguishing them from the products of Sony’s competitors.

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Creation of Image Function

Trademarks create an image of the product or service they are associated

with. Trademarks essentially function to create goodwill for the company.
The goodwill embodied in a trademark constitutes a company’s
intellectual property or asset. The prolonged usage of a trademark
associated with a particular business helps the business gain reputation
and goodwill regarding its particular trademark.

In due course of time, the general public gains the knowledge and is
aware of the trade name or brand name and associates the particular
trademark with the specific services or goods. Thus, trademarks gain
reputation and goodwill, which eventually expands to a larger area making
the trademarks known globally.

For example: The mark ‘M’ which represents the food items originating
from the American fast-food chain ‘McDonalds’, creates a reputation and
image for food items offered by it for sale in the market.
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INDIAN TRADE MARK ACT, 1999:

SALIENT FEATURES Some major changes brought about in the law of

trade marks in India by the Trade Marks Act, 1999 are summarised as
under:

a) Inclusion of trade mark for services in the definition of trade mark;

b) A new provision for registration of Collective Marks;

c) Prohibition of registration of certain marks which are mere

reproductions of or imitations of well known marks;

d) Provision for filing a single application for registration in more than one
class of goods and/or services;

e) Increasing the term of registration of a trade marks from 7 to 10 years

and providing a grace period of six months for payment of renewal fees;

f) Amplification of circumstances in which validity of registration can be

contested;

g) Vesting the final authority in the Registrar for disposing of application

for registration of Certification Trade Marks;

h) Harmonizing penal provisions of the Trade Marks Law with The

Copyright Law;

i) Provision for establishment of an Appellate Board.

The salient features of the Trade Marks Act, 1999

(a) Providing for registration of trade mark for services, in addition to

goods.

(b) Amplification of definition of trade mark to include registration of

shape of goods, packaging and combination of colours.

(c) All 42 international classification of goods and services (as earlier

used) now applicable to India as well.

(d) Recognition of the concept of “well-known trade marks”.

(e) Increasing the period of registration and renewal of trade marks from 7
to 10 years, to bring it in conformity with the accepted international
practice.

(f) Widening the scope of infringement of trade marks. For instance, use of
a registered trade mark as trade name or as a part of a trade name or use
of a mark which is identical or deceptively similar to a registered trade
mark.

(g) Creation of an “Intellectual property Appellate Board” for hearing

appeals against orders and decisions of the Registrar of Trade Marks for
speedy disposal of cases and rectification applications which hitherto lie
before High Courts.

(h) Criminal remedies in case of falsification of trade marks.

(i) Recognition of use of trade mark by even an unregistered licensee.

(j) Expeditious examination of a trade mark application on payment of five

times the application fee.

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Product Mark

Product mark is a mark that is used on a good or on a product rather than

on a service. This this type of trademark is used to recognize the origin of
the product and helps in maintaining the reputation of a business.
Trademark applications filed under trademark class 1-34 could be termed
as a product mark, as they represent goods.

Service Mark

Service mark is similar to the product mark but a service mark is used to
represent a service rather than a product. The main purpose of the service
mark is that it distinguishes its proprietors from the owners of other
services. Trademark applications filed under trademark class 35-45 could
be termed as a service mark, as they represent services.

Collective Mark

Collective mark is used to inform the public about certain distinguished

features of a product or service used to represent a collective. A group of
individuals can use this mark so that they are collectively protecting a
goods or service.

In a collective mark, normally the standards of the products are fixed by

the regulator owing the mark. Others associated with the collective are
held responsible to adhere to certain standards while using the mark in
the course of business.

Certification Mark

Certification mark is a sign that denotes a products origin, material,

quality or other specific details which are issued by the proprietor. The
main purpose of certification mark is to bring out the standard of the
product and guarantee the product to the customers. A certification mark
can also be used to uplift the product’s standard amongst the customers
by showing that the product had undergone standard tests to ensure
quality. Certification marks are usually seen on packed foods, toys and
electronics.

Shape Mark

Shape Mark is exclusively used to protect the shape of the product so that
the customers find it relatable to a certain manufacturer and prefer to buy
the product. The shape of a particular product can be registered once it is
recognized to have a noteworthy shape. An example of a shape is the
Coca-Cola bottle or Fanta bottle, which have a distinctive shape
identifiable with the brand.

Pattern Mark

Pattern marks are those products that have specific designed patterns
that come out as the distinguishing factor of the product. Patterns which
fail to stand out as a remarkable mark is generally rejected since it does
not serve any purpose. For a pattern to be registered, it has to show
evidence of its uniqueness.

Sound Mark

Sound mark is a sound that can be associated with a product or service

originating from a certain supplier. To be able to register a sound
mark, when people hear the sound, they easily identify that service or
product or a shows that the sound represents. Sound logos are called as
audio mnemonic and is most likely to appear at the beginning or end of a
commercial. The most popular sound mark in India is the tune for IPL.

The distinction between a trade mark and a property mark has been
stated by the Supreme Court in the case of Sumat Prasad Jain v.
Sheojanam Prasad and Ors., AIR 1972 SC 413. The Apex Court held:
“…Thus, the distinction between a trade mark and a property mark is that
whereas the former denotes the manufacture or quality of the goods to
which it is attached, the latter denotes the ownership in them. In other
words, a trade mark concerns the goods themselves, while a property
mark concerns the proprietor. A property mark attached to the movable
property of a person remains even if part of such property goes out of his
hands and ceases to be his.”

One of the first landmark judgments in this regard is the “Whirlpool

case” [N. R. Dongre v. Whirlpool Corporation, 1996 (16) PTC 583]
in which the Court held that a rights holder can maintain a passing off
action against an infringe on the basis of the trans-border reputation of its
trade marks and that the actual presence of the goods or the actual use of
the mark in India is not mandatory. It would suffice if the rights holder has
attained reputation and goodwill in respect of the mark in India through
advertisements or other means.