Definitions Given in the section holdgood unless the context otherwise requires. Where the context shows anintention repugnant to the meaning given in the definition, the context mustprevail. Otherwise the meanings given in the section must govern even thoughthey may not, in any case, be identical with that given to the expression inits ordinary or legal use. Assignment Here refers to assignmentby act of parties as distinguished from assignment by operation of law.
Thedefinition was not contained in the act of 1940. Associated Trademark Section 16 provides thattrademark registration as associated trademarks. Section 44 provides forassignment and transmission of associated trademarks.
Sub-section (1)(e) –”Certification Trade Mark”In the English act, thisterm “Trademark” are both defined in the same clause. Under the Indian Act,however, this term is not included in the expression “Trademark”. The Englishact defines the term as “a mark registered or deemed to have been registeredunder 37 of the old English Act. Deceptively SimilarThis term is new. It isnot defined in the English Act also. From the definition it is plain that boththe trademarks (‘DO CHIRI’ and ‘DO KABUTAR’ in the instant case) should beexactly 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. Thesection 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 reasonablycalculated to cause it to be believed that the goods so marked or any goodscontained in any such receptacle so marked have a connection in the course oftrade with a person with whom they have not any such connection, is said to usea false trademark”. GoodsUnder the definition,things which form the subject of trade of manufacture, are goods.
Without itsbeing applied to goods, there can be no trademark. For example, marks put ongoods like paper, matches, ghee, chemical preparations, soaps, textiles,hosiery and so on, which are manufactured and sold under the said marks in theopen market, will be trademarks. A mere service trademark or property markcould not be a trademark.
LimitationsLimitation means any kindsof restrictions which may be placed on the exclusive right to the use oftrademark given by registration of aperson as proprietor thereof. Some kinds of limitations are set out in thedefinition but they are not exhaustive but merely innustrative. The limitationsindicated in the definition are as to :Mode of user Use in relation to goodsto be sold or otherwise traded within India.Goods to be exported toany market outside India. The trademarks registershould contain entries as to limitations, conditions and disclaimer. Technical trademarkTechnical trademark is aword, device or symbol lawfully appropriated by a manufacturer or trader todistinguish his specific products, the primary purpose of which is to indicatethe goods and not to distinguish a particular trade, style, or size of themanufacturers products, and it must be capable of distinguishing one’s articlesfrom all others with respect to origin to ownership. Device is that which is devised or designed acontrivance an emblem a motto. BrandIs a trademark, made byburning or otherwise as on casks; a particular class of goods as ifdistinguished by a trademark.
A brand may be impressed in several ways-by watermarks on paper (e.g. Tiger Brand, Elephant Brand)HeadingsOrdinarily understood, itis title indicating the subject-matter to follow. As applied to trademarks wehear of line headings in the cotton trades.LabelIs defined as an attachedbrand or strip, a small strip placed on or near anything to denote its nature,contents, ownership, destination, etc.Blanks in registeredlabels As regards blanks in registered labels Kerlystates. It is common practice to register labels with blank spaces which in useare filled up by matter which is either not capable of registration, or whichfor some other reason it is not convenient to register, because, for example itis changed from time-to-time. The practice isunobjectionable, and the use of the additional matter, which forms of course nopart of the trademark protected by registration, does not interfere with theprotection of the label as registered.
Ticket A ticket is a card, slipor placard serving as a token of any right. The difference between a ticket anda 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 isreadily accepted while a single letter is rarely used or accepted asdistinctive. NumeralA trademark consisting ofnumerals is distinctive and can be registered for goods, not only for textiles,on proof of their extensive use. ColourMere use by the defendantof the colour adopted by the plaintiff is not objectionable so long as the trademarkitself is not imitated. The plaintiff has no monopoly of a colour. But a colourimpressed in a particular design, such as circle, square, triangle, cross, orstar or used in connection with other characters, may be appropriated as atrademark. Sub-section – “Name”A name may be a markregistrable if distinctive.
It includes the abbreviation of a name. The abbreviationof 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, ofa 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) – “PermittedUse”The use must be in respectof a registered trademark and must comply with the conditions and restrictionsto which the subject of trademark registration. Sub-section (1)(s) – “Prescribed”This term means, asregards proceedings before a high court, ‘prescribed by rules framed by thatcourt and otherwise the term means prescribed by rules made under this act. Sub-section (1)(t) – “Register”This means the register oftrademarks referred to in sub-section (1) of section 6.
Sub-section (1)(u) – “Registered”Provisions of the act, forpurposes of the act the term means “registered under the act”.Sub-section (1)(v) – “RegisteredProprietor”The term can only refer toa person who is actually on the register. Sub-section (1)(w) – “RegisteredTrademark”The term again means atrademark which is actually on the register. It cannot apply to a trademarkwhich was once registered but which has been removed from the register for anyreason under the act. Sub-section (1)(x) – “RegisteredUser”This section lays down theformalities to be complied with for registration. Under this definition “registereduser” is therefore stated to mean registered use for the time being registeredas such.