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Legal Needs
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| Sep 24, 2008 4:20 pm |
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re: re: Difference between a Brand Name & a Trademark?? |
Vijay Nair
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The difference is as simple as it sounds in your question.
A name and a mark.
Broadly stated, a TRADE MARK as defined under the Indian law is a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours.
A BRAND NAME/TRADE NAME is used by companies to identify themselves and distinguish their businesses from others in the same field.
There could be Trade Names without Trade Marks, but there are no Trade Marks without Trade Names, at least to my knowledge.
Like "Kelvinator" was a Trade Name and a Penguin in Oval Shape was its Trade Mark. The name "Godrej" is a Trade Name and the manner in which it is written, is its Trade Mark.
There is something which is yet to be in black and white in so far as India goes, and that is TRADE DRESS.
Trade dress is used by competitors to distinguish their products by visual appearance, including size, shape, and color, while service marks are used by competitors to distinguish their services from each other. Gradually, the law of trade dress and service marks has evolved into separate causes of action, independent from the law of trade name infringement.
In S.V.S. Oil Mills vs. S.V.N. Agro-refineries & another [2004 (29) PTC 548 (Mad) (DB)], the Court held that ""the material form, colour and getup of the wrapper or label or container of the articles are the physical means of expression and the design of the container or the label is of great significance as it is meant to catch the attention of any purchaser. The design of the label would include not only the trademark, but also the colour scheme and getup of the wrapper or container as well. It is well known that there are several eye-catching designs and the customers who are familiar with the articles would invariably be guided and attracted to purchase goods by the sight of label. There is a power behind the design of the label as the customers have the intuitive instinct to select the goods by the design, colour, getup and the trade name and if the goods of same kind, with the same colour scheme and getup in the labels belonging to two manufacturers with phonetic similarity in trade names are exhibited or offered for sale, a normal consumer of average intelligence with imperfect memory would take one article as belonging to other".
Hope this satisfies your queries and raises many more!!!!
Vijay Nair, Partner
KNM & Partners, Law Offices
http://www.knm.in/Private Reply to Vijay Nair (new win) |
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