Definitions

Given in the section hold
good unless the context otherwise requires. Where the context shows an
intention repugnant to the meaning given in the definition, the context must
prevail. Otherwise the meanings given in the section must govern even though
they may not, in any case, be identical with that given to the expression in
its ordinary or legal use.

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Assignment

Here refers to assignment
by act of parties as distinguished from assignment by operation of law. The
definition was not contained in the act of 1940.

Associated Trademark

Section 16 provides that
trademark registration as associated trademarks. Section 44 provides for
assignment and transmission of associated trademarks.

Sub-section (1)(e) –
“Certification Trade Mark”

In the English act, this
term “Trademark” are both defined in the same clause. Under the Indian Act,
however, this term is not included in the expression “Trademark”. The English
act defines the term as “a mark registered or deemed to have been registered
under 37 of the old English Act.

Deceptively Similar

This term is new. It is
not defined in the English Act also. From the definition it is plain that both
the trademarks (‘DO CHIRI’ and ‘DO KABUTAR’ in the instant case) should be
exactly similar. Sub-section (1)(i) – “Fake Trade Description”

This definition is new.
Section 480 of the Indian Penal Code defines the use of a false trademark. The
section runs as follows:

Whoever marks any goods,
or any case, package or other receptacle containing goods, or use any case,
package or other receptacle with nay trademark thereon in a manner reasonably
calculated to cause it to be believed that the goods so marked or any goods
contained in any such receptacle so marked have a connection in the course of
trade with a person with whom they have not any such connection, is said to use
a false trademark”.

Goods

Under the definition,
things which form the subject of trade of manufacture, are goods. Without its
being applied to goods, there can be no trademark. For example, marks put on
goods like paper, matches, ghee, chemical preparations, soaps, textiles,
hosiery and so on, which are manufactured and sold under the said marks in the
open market, will be trademarks. A mere service trademark or property mark
could not be a trademark.

Limitations

Limitation means any kinds
of restrictions which may be placed on the exclusive right to the use of
trademark  given by registration of a
person as proprietor thereof. Some kinds of limitations are set out in the
definition but they are not exhaustive but merely innustrative. The limitations
indicated in the definition are as to :

Mode of user

Use in relation to goods
to be sold or otherwise traded within India.

Goods to be exported to
any market outside India.

The trademarks register
should contain entries as to limitations, conditions and disclaimer.

Technical trademark

Technical trademark is a
word, device or symbol lawfully appropriated by a manufacturer or trader to
distinguish his specific products, the primary purpose of which is to indicate
the goods and not to distinguish a particular trade, style, or size of the
manufacturers products, and it must be capable of distinguishing one’s articles
from all others with respect to origin to ownership.

Device

 is that which is devised or designed a
contrivance an emblem a motto.

Brand

Is a trademark, made by
burning or otherwise as on casks; a particular class of goods as if
distinguished by a trademark. A brand may be impressed in several ways-by water
marks on paper (e.g. Tiger Brand, Elephant Brand)

Headings

Ordinarily understood, it
is title indicating the subject-matter to follow. As applied to trademarks we
hear of line headings in the cotton trades.

Label

Is defined as an attached
brand or strip, a small strip placed on or near anything to denote its nature,
contents, ownership, destination, etc.

Blanks in registered
labels

 As regards blanks in registered labels Kerly
states. It is common practice to register labels with blank spaces which in use
are filled up by matter which is either not capable of registration, or which
for some other reason it is not convenient to register, because, for example it
is changed from time-to-time.

The practice is
unobjectionable, and the use of the additional matter, which forms of course no
part of the trademark protected by registration, does not interfere with the
protection of the label as registered.

Ticket

A ticket is a card, slip
or placard serving as a token of any right. The difference between a ticket and
a label is that the former is attached to the goods by pinning or stitching,
whereas a label is pasted to the goods.

Letter

Combination of Letters is
readily accepted while a single letter is rarely used or accepted as
distinctive.

Numeral

A trademark consisting of
numerals is distinctive and can be registered for goods, not only for textiles,
on proof of their extensive use.

Colour

Mere use by the defendant
of the colour adopted by the plaintiff is not objectionable so long as the trademark
itself is not imitated. The plaintiff has no monopoly of a colour. But a colour
impressed in a particular design, such as circle, square, triangle, cross, or
star or used in connection with other characters, may be appropriated as a
trademark.

 

 

 

Sub-section – “Name”

A name may be a mark
registrable if distinctive. It includes the abbreviation of a name. The abbreviation
of the name of a firm is equated to the name itself. “Mark” includes a name and
“Name includes its abbreviation. Name may be a firm, company or individual, of
a premises or of an article.

Sub-section – “Package”

Package includes any case,
box, container, covering, folder, receptacle, vessel, band, ticket, reel, lid,
cap, cork and stopper.

Sub-section (1)(r) – “Permitted
Use”

The use must be in respect
of a registered trademark and must comply with the conditions and restrictions
to which the subject of trademark registration.

Sub-section (1)(s) – “Prescribed”

This term means, as
regards proceedings before a high court, ‘prescribed by rules framed by that
court and otherwise the term means prescribed by rules made under this act.

Sub-section (1)(t) – “Register”

This means the register of
trademarks referred to in sub-section (1) of section 6.

Sub-section (1)(u) – “Registered”

Provisions of the act, for
purposes of the act the term means “registered under the act”.

Sub-section (1)(v) – “Registered
Proprietor”

The term can only refer to
a person who is actually on the register.

Sub-section (1)(w) – “Registered
Trademark”

The term again means a
trademark which is actually on the register. It cannot apply to a trademark
which was once registered but which has been removed from the register for any
reason under the act.

Sub-section (1)(x) – “Registered
User”

This section lays down the
formalities to be complied with for registration. Under this definition “registered
user” is therefore stated to mean registered use for the time being registered
as such.