Intellectual Property Law (Trade marks) Essay Example | Topics and Well Written Essays - 2000 words

Intellectual Property Law (Trade marks) - Essay Example In the absence of these marks, substandard quality or other manufacturing defects might not be traced to their manufacturer. Thus trademarks on the one hand ensure and maintain the reputation of the manufacturer and on the other hand they make the seller liable for the quality of the goods made or sold. The fundamental feature of the Trade mark law is to defend the consumer's investment in respect of the goods or services purchased, from unfair and misleading advertising by immoral competitors. Most of the courts have made it mandatory for trade marks to be non- descriptive of the goods to which they are applied. All goods and services are classified into 45 internationally recognized classes for the purpose of identifying a company's rights in respect of goods or services. As such the trademark registration will be done only for these groups. Again, the trademark application shall describe in detail as to which goods or services of a category being applied for. Thus trademark registration would disqualify applications claiming all goods in a class. Trademarks must be protected and used more frequently compared to copyrights and patents. The holder of a patent or copyright may inhibit its usage by keeping the creation for himself, where as a company obtaining a trademark and failing to use it, or failing to look after it from being used in the breach, is likely to loose the right to it. In the event of a trademarked term becoming generic out of common use or in the event of a consumer failing to recognize it as a trademark or a court ruling to that effect, makes it null and void1. The reasons for rejection or acceptance for registration of trademarks under the Trade Marks Act, 1994 and the registrability of certain type of marks are discussed here under. The smell of roses applied to Rambling Rose Dolls. In the U.K., several scent registrations have been issued as a result of the amendment to the U.K. Trademark Act in 1994. Subsequently, the registration of the smell of roses was done in respect of car tyres in the United Kingdom2. This trend is visible in other European countries also, where applications for scent marks have been filed and the OHIM has accorded permission for the registration of a mark incorporating "The Smell of Fresh Cut Grass" for tennis balls3 and similarly in the case of Benelux4. The intention is to enhance product esteem. Smell marks are registrable if they are already being used or will be used in the future as a trademark. It must be a supplementary component produced by the manufacturer and it should not be a part or arising from the goods or services or the consumer should particularly associate the smell with that product5. The public has been associating the smell of roses with car tyres and this has b een registered so the third clause of registrability is inapplicable to rambling dolls. Registrability of the exterior form of a tin of baked beans produced by Gusto Ltd. The canister of beans in this case, is similar to that used by another prominent manufacturer which though not registered as a trademark was being used for 30 years. This shape will be provided legal protection on the basis of reputation or goodwill. The efforts of a competitor to use a name similar to that being used by a small business which had been doing business from many years without a registered trademark will be