Development of Trademark Protection in India

While some form of proprietary protection for marks in India dates back several millennia,
Indias statutory Trademarks Law dates back to 1860. Prior to 1940 there was no official
trademark Law in India. Numerous problems arose on infringement, law of passing off etc. and
these were solved by application of section 54 of the Specific Relief Act 1877 and the
registration was obviously adjudicated by obtaining a declaration as to the ownership of a
trademark under Indian Registration Act 1908.
To overcome the aforesaid difficulties the Indian Trademarks Act was passed in 1940, this
corresponded with the English Trademarks Act. After this there was an increasing need for more
protection of Trademarks as there was a major growth in Trade and Commerce. The replacement
to this act was the Trademark and Merchandise Act 1958. This Act was to provide for registration
and better protection of Trademarks and for prevention of the use of fraudulent marks on
merchandise. This Law also enables the registration of trademarks so that the proprietor of the
trademark gets legal right to the exclusive use of the trademark. The objective of this act was
easy registration and better protection of trademarks and to prevent fraud.
The re-appellation of the Trademarks and Merchandise Act gave rise to the Trademark Act 1999;
this was done by the Government of India so that the Indian Trademark Law is in compliance
with the TRIPS obligation on the recommendation of the World Trade Organisation. The object
of the 1999 Act is to confer the protection to the user of the trademark on his goods and prescribe
conditions on acquisition, and legal remedies for enforcement of trademark rights.
It will for the first time protect service marks and give provision of registration for collective
marks, it will also differentiate between well known trademarks and trademarks in general, and
also special treatment and rights are envisaged for well known trademarks. The act of 1999 also
gives police the right to arrest in case of infringement. There are some points of changes that are
present between the 1958 act and 1999 act, it can be said that the 1999 act is a modification of
the 1958 act, it has provided exhaustive definitions of terms frequently used, enhanced
punishment for offenders, increased the period of registration, registration of non-traditional
trademarks. The rules of this act are called as Trademark Rules 2002. Both the Act and its set of
rules came to effect on September 15th 2003. The trademark act 1999 and its trademark rules
2002 presently govern Indian Trademark Laws in India. Laws of trademarks are based on
distinctiveness and deceptive similarity. If distinct signs are freely used the brand equity created
by one person will be freely used by another. The value of distinctive sign depends on sales
volume and public association of sign with quality.