PROTECTION OF SERVICE MARKS IN INDIA
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?PROTECTION OF SERVICE MARKS IN INDIA?
SERVICE MARKS ARE THE MARKS WHICH ARE USE FOR PROVIDING SERVICES AND NOT FOR SELLING GOODS. SERVICE MARKS ARE NOT DEFINED IN THE TRADEMARKS ACT, 2000 AS TRADEMARKS DISCUSSED IN THE ACT COVERS BOTH TRADEMARKS AND SERVICEMARKS. SERVICEMARKS REPRESNTS THE PROVIDER OF SERVICES, THESE ARE USED IN ADVERTISING, ON VEHICLES etc, THESE MARKS HELP PEOPLE IN DISTINGUISHING THE DIFFERENT SERVICE PROVIDERS.SERVICE MARKS ARE PROTECTED AS PER THE TRADEMARKS ACT, 2000 .
AS REGISTRARTION OF SERVICEMARKS IS NOT MANDATORY AS PER THE ACT, BOTH THE REGISTERED AS WELL AS UNREGISTERED SERVICEMARKS.UNREGISTERED SERVCEMARKS ARE PROTECTED BY PASSING-OFF AS PER THE COMMON LAW PRINCIPLES OF COMMON LAW WHEREAS REGISTERED SERVICEMARKS ARE PROTECTED BY INFRINGEMENT AS PER THE ACT. REGISTRATION DOES NOT CREATE ANY GREAT IMPACT AS INDIA IS FOLLOWS FIRST-USE BASIS NOT FIRST-REGISTRATION BASIS, IT ONLY MAKES THE EVIDENCE OF TRADERS STRONG OR WE CAN SAY THAT IT PUTS AN EXTRA LAYER WHILE STRENGTHNING THE EVIDENCE OF USING SERVICEMARKS.
THE 4TH SCHEDULE OF THE TRADEMARKS RULE RELEASED IN 2002,CLASSIFIED GOODS AND SERVICES FOR THE PURPOSE OF REGISTRATION, IN WHICH ENTRIES 1 TO 34 CLASSIFY GOODS AND 35 TO 42 CLASSIFY SERVICES LATER ON 3 MORE WERE ADDED ( 43, 44, 45), SO AT PRESENT 11 ENTRIES DEAL WITH SERVICES FOR EXAMPLE ADVERTISING, EDUCATION, REAL ESTATE, FOODING, TRANSPORT ETC.
INDIA FOLLOWS HE ?NICE? AGREEMENT WHICH DEALS WITH INTERNATIONAL CLASSIFICATIONN OF GOODS AND SERVICES AND THAT IS WHY IT HAS INCLUDED THE CLASSIFIED LIST OF GOODS AND SERVICES IN THE ACT.
AS WE DISCUSSED ABOVE THAT SERVICEMARKS, WHETHER REGISTERD OR UNREGISTERED, ARE PROTECTED UNDER THE ACT ITSELF.
- PROTECTION OF UNREGISTERED TRADEMARKS IN INDIA :
ARTICLE 27 PROVIDES NO REMEDY FOR INFRINGEMENT OF UNREGISTERED SERVICEMARKS AS THERE CAN BE NO INFRINGEMENT WITHOUT REGISTRATION, BUT IN THIS ARTICLE REMEDY FOR PASSING OF IS SAVED. HENCE IF ANY SEVICEMARKS IS PASSED OF THEN REMEDIES ARE AVAILABLE FOR SUCH ACT AS PER COMMON LAW PRINCIPLE.
- PROTECTION OF REGISTERED SERVICEMARKS IN INDIA :
IF A SERVICEMARK IS REGISTERED UNDER ARTICLE 18 OF THE TRADEMARKS ACT, 2000 THEN ARTICLE 28 PROVIDES REMEDY FOR ITS INFINGEMENT.REGISTRATION GIVE THE OWNER OF SERVICEMARK THE EXCLUSIVE RIGHT TO USE THE SERVICEMARKS FOR SERVICES FOR WHICH IT IS REGISTERED.
REMEDIES :
THOUGH DIFFERENT TERMS ARE USED FOR INFRINGEMENT OF REGISTERED AND UNREGISTERED SERVICEMARKS BUT SAME REMEDIES ARE AVAILABLE FOR BOTH, THAT IS TO SAY BOTH CAN CLAIM SAME REMEDY BY 2 DISTINTIVE WAYS.CHAPTER 12 OF THR TRADEMARKS ACT, 2000 PROVIDES FOR OFFENCES AND THEIR PENALTIES IF ANY SERVICEMARKS IS PASSED OF OR INFRINGED FOR EXAMPLE IMPRISIONMENT FROM 6 MONTHS UPTO 3 YEARS OR FINE UPTO 2 LAKHS.
WELL KNOWN MARKS ARE GIVEN HIGHER DEGREE OF PROTECTION. IF ANY SERVICEMARK IS A WELL KNOWN SEDRVICEMARK THEN NO ONE CAN USE THAT MARK EVEN FOR DIFFERENT CLASS OD SERVICES FOR WHICH IT ISD NOT REGISTERED.
CONCLUSION
AFTER THE COMMENCEMENT OF THE TRADEMARKS ACT, 2000 SERVICEMARKS GOT PROTECTION BY A STATUTE AND NEW AREAS AND WAYS WERE INTRODUCED TO PROTECT BOTH OWNER AND CONSUMERS.
