INTELLECTUAL PROPERTY RIGHTS : CREATING WEALTH
Intellectual property rights include patents, trademarks, copyrights, and trade secrets. IPR cements the integrity of brands and is at the heart of a modern economy. Without IPRs, consumers couldn’t be sure whether a product marked with a particular logo was genuine. Thanks to IPRs, startups and other companies are incentivised to develop new and better technologies because bringing them to market increases their revenues.
POINTS TO CONSIDER WHILE ADOPTING A TRADEMARK
Any start-up needs to be heedful in selecting its trade name, brands, logos, packaging for products, domain names and any other mark which it proposes to use. The start-up must do a proper due diligence before adopting a trademark. The trademarks, can be broadly classified into following 5 categories:
- Generic
- Suggestive
- Arbitrary
- Invented/Coined
- Descriptive
Generic marks means using the name of the product for the product, like “Salt” for salt.
Descriptive marks means the mark describing the characteristic of the products, like using the mark “Fair” for the fairness creams. Suggestive marks means the mark suggesting the characteristic of the products, like “Habitat” for home furnishings products.
Arbitrary marks, such as “Blackberry” for phones, exist in common lexicon but have no logical relationship to the goods or services for which they are used.
The invented/ coined marks means coining a new word which has no dictionary meaning, like “Adidas”. The strongest marks, and thus the easiest to protect, are invented or arbitrary marks. The weaker marks are descriptive or suggestive marks which are very hard to protect. The weakest marks are generic marks which can never function as trademarks.
The term “invented/ coined mark” refers to the creation of a new word that has no dictionary definition, such as “Adidas.” Invented or arbitrary marks seem to be the most effective and thus the easiest to preserve. The weaker marks are descriptive or suggestive in nature and are difficult to protect. Generic marks are the weakest, as they can never be used as trademarks. For trademark registration in India, the NICE Classification of Goods and Services is used. The NICE Classification groups products into 45 classes (classes 1-34 include goods and classes 35-45 include services). The NICE Classification is recognized in majority of the countries and makes applying for trademarks internationally a streamlined process. Every startup, seeking to trademark a good or service, has to choose from the appropriate classes, out of the 45 classes.
When choosing a mark, the startup should keep in mind and double-check that the mark is not being used by anybody else in India or elsewhere, especially if it is well-known.
It’s worth noting that India understands the concept of a “well-known trademark” and the concept of “trans-border reputation.” Google, Tata, Yahoo, Pepsi, Reliance, and other well-known trademarks are examples. Furthermore, under the idea of “Trans-border Reputation,” India has granted trademark protection to companies such as Apple, Gillette, Whirlpool, and Volvo, despite the fact that they have no physical presence in India.