What is Trade name of Trademark Registration process in India

Trade name:-Trademark registration in Cochin

A name is actually understood to mean the name, identifying, designating and distinguishing an enterprise. Mark is defined to include a name and name would thus include trade name or trading style. A trade name can be used well in order to distinguish the goods or services of an enterprise. There are several enterprises using their distinct trade name or business name as house marks in relation to their goods or services, e.g. Pfizer, Glaxo, Alembic, etc. It is open to such enterprise to use its trade name as a house mark in addition to any other distinctive trademark in respect of its different products.

We can say, trade names must be distinctive which is capable of distinguishing the enterprise and qualifies for the registration of a mark. Purely descriptive names such as imports and Exports Company will not be regarded as capable of distinguishing goods or services of the enterprise and not registrable as trademarks.

A manufacturer or trader normally desires to use as a mark something associated with his name. The name or business name identifying his business activity is a natural mark for him to use to identify his goods. Generally, he will not use as a trademark his full personal or business name but a characteristics part of such name, an abbreviation or merely the surname. But this legitimate desire or interest on his part must be reconciled with the desire or interest of a competitor to use his own identical or similar personal or business name or abbreviation or surname.

If a person chooses to trade under a name, which is highly non-specific, which consists of simple words in common use in the general language of the people, he must take the consequences.

The only right of an individual or firm to the sole use of trade name, as distinguished from a trademark is this. That when a name has become identified, by adoption and user, with a particular trade or manufacture or business, the person who so used or adopted it can obtain the aid of this court to restrain the use of it by others in such a way as to lead customers or the public to think the trade or business of the person so using his trade or business.

The question is whether the words used in the trade name are mere descriptive words of common use or have they come to acquire a distinctive or a secondary meaning in connection with the plaintiff’s business so that the use of those words in the trade name adopted by another was likely to deceive the public.

Secondly, whether there is a reasonable probability that the use of the name adopted by the defendants was likely to mislead the customers of the plaintiff by reason of similarity of the two trade names. In the Kodak cases, it was found that the defendant company had no valid explanation for adopting the name Kodak as part of its corporate name while doing a business of manufacture and sales of cycles; that though the Eastman photographic materials Co.Ld. did not carry on a business of manufacture and sale of bicycles, it has carried on the manufacture and sale of a certain type of cameras, which were capable of being fitted on bicycles and accessories thereto. It was held, therefore, that there was a likelihood of deception and confusion if the defendant was permitted to carry on business in the name adopted by it. The defendant restrained from using the trademark “Kodak” as part of its corporate name.

A plaintiff’s title to a trade or business name is determined by proof of reputation, and reputation comes from a user.When interference with the business reputation or trade is sufficient ground for the court’s interference.

There is no law laying down the particular length of time during which such reputation can be acquired, but it must be acquired by a user sufficiently long according to the circumstances of the case.

To put the matter in general terms, if one trader acquires a reputation with the public in relation to a particular name or get-up, the use of that name or get-up by another trader in either an associated field or even in a different field may be restrained if the public may be confused into thinking that the product or service of the other trader has the cachet of the first trader’s established name or getup. This is to be distinguished from what may be called product confusion. In the case with which I am concerned, there is obviously no possibility whatever of product confusion. No one would purchase the defendants Red label cigarettes thinking that he was buying the plaintiff’s red label whiskey. The confusion, if any, is only that of the name.

Copying of trade name amounts to making a false representation to the public from which they have to be protected. Besides the name of the company acquires reputation and goodwill, and the company has a right to protect the same. A competitor cannot usurp and goodwill and reputation of another.

One of the harmful effect of adopting the particular corporate name of another is that it can injure the reputation and the business of that person.

Once reputation has been established, a plaintiff need not establish the fraudulent intention or misrepresentation in action for passing off.

In a suit by one company for injunction restraining another company from carrying on business under similar name it is not sufficient to show that there is a similarity of names but it must also be shown that there is a reasonable probability that the use of the name would result in the defendant’s appropriating the material advantage of the plaintiff’s business and before the court will grant an injunction, a very high standard of affirmative proof is required to establish the plaintiff’s case or that the similarity of the trade names is of itself sufficient.

Amendment of companies act:

As indicated in the statement of objects and reasons of the legislation, the law inter alia seeks to prohibit the use of someone else’s trademark as part of corporate name or name of a business concern.

Sub-section (2) of section 20 of the companies act, 1956, has been amended as follows; vide section 158 of the act.

Without the prejudice to the generality of the foregoing power, a name which is been identical with or resembles too nearly:

• The name of the existing company has been previously registered or
• A registered trademark which is subject to the application for registration, of any other person under the trademarks act, 1999;

It may be deemed to be undesirable by the central government under the sub-section (1).

The central government may, before deeming name as undesirable under clause (ii) of sub-section (2), consult the registrar of trademarks.

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