In India, Trademark is governed by the Trade Marks Act 1999. A Trademark is referred as a brand or logo. A trademark is defined as a distinctive sign that identifies certain goods/services as those produced/provided by a specific person/enterprise. A trademark consists of the drawings, symbols, three-dimensional colours and also combination of colours. A trademark can be in the form of words, letters and numerals or the combination of the all the three. Such marks are used by the companies or traders or any firms to distinguish their goods or services from the other companies or traders or firm (who are competitors). It is often observed that the trademark is used by the consumer to make his choice while buying any goods or availing services as there are some expectations with the quality of that particular trademark. In simple words, a trademark helps to attract customers and maintain a loyal base of customers for a specific brand.
In India, Copyright is governed by the Copyright Act 1957. The copyright is defined as a person’s exclusive right to reproduce, publish, or sell his original work of authorship. The protection is available for original works of an author that are in a tangible form irrespective of whether it is published or not. It is essentially a right not to copy another person’s work. A Copyright can be registered on the works such as music, books, paintings, films, literary work, software, photograph, etc.
Is Trademark Registration compulsory in India?
Any person who claims to be the owner of a trademark has a right to apply for the registration of it. The registration of a trademark shall be for a period of 10 years. The registration can be renewed after paying renewal fees. A registered trademark is represented by the symbol ®. An unregistered trademark is represented by the trademark symbol TM. In India, the registration is not compulsory for a trademark. However, it is always advisable to get the trademark registered as the registered trademark owner enjoys a bundle of rights.
The trademark owner must register his trademark for the following reasons:
- The registered trademark helps to identify the origin of goods and services of a trademark owner.
- The registered trademark helps in advertising the goods and services of the trademark owner.
- The registered trademark protects the commercial goodwill of a trademark owner.
- The registered trademark protects the common people from buying any unauthorized product or services.
- A registered trademark will give an exclusive/monopoly right to the trademark owner to use his trademark relating to goods and services.
- Registering trademark gives legal rights of injunction and compensation over the third party (who are known as infringers).
- The registered trademark helps the trademark owner to create his brand value.
- A legal trademark also prevents the other traders from deceiving the consumer.
An unregistered trademark does not enjoy any legal benefits. However, an unregistered trademark can be protected through tort law of passing off whereas a registered trademark is protected under the statutory law. Passing off means an unfair trade competition by which an individual seeks to profit from the reputation of another individual.
Is Copyright Registration compulsory in India?
The author or the publisher or the owner or any other person who is interested in the copyright of any work can make an application under section 45 of the Copyright Act 1957 in the prescribed form and fee to the registrar of Copyrights. The registrar will enter the particulars of the work in the Register of Copyrights. The Copyright registration for literary work, dramatic, musical, artistic works is valid for the lifetime of the author and 60 years after his death. In the case of cinematograph films, sound recordings, photographs, etc. the 60 years is counted from the date of publication of such original works. In India, the registration is not compulsory for Copyright. However, it is always advisable to get the Copyright registered as the registered Copyright owner enjoys rights over his work and will also get the protection against any other person as they will not be able to copy his original work. The protection will be granted for a minimum period of time.
Hence, the Registration of a trademark is not compulsory. If the trademark owners are of the opinion that their trademark has been infringed by any other person, then they can take legal action. If it is proved that the trademark has been infringed, then the Court can prevent the other party from using such trademark and will award monetary relief to the trademark owner. However, it is to be noted that no suit can be instituted for infringement of the trademarks that are not registered.
Hence, the Registration of a Copyright is not compulsory. However, it is always advisable to register the copyright as the registered copyright certificate acts as a proof of ownership in a Court also it grants protection to the author of original works that no person will be able to copy his work in future. The Copyright provides for civil remedies such as permanent injunction, damages or accounts of profits, delivery of the infringing material for destruction, etc. The infringement of Copyright can make it a cognizable offence which is punishable for a term not less than six months, but it can be extended for a period of three years and a fine of not less than Rs. 50,000 but it can be extended upto Rs. 2,00,000.