Introduction of New Trademark in The Market And The Associated Factors
The competitors take as much note of the introduction of a trademark as they might notice introduction of a new product or a new technology. On introduction of a new brand in the market, there arise perception in the minds of traders, retailers, other manufacturers, about the acceptance and visibility of a new trademark which in turn depends upon various factors and would cause an impact on existing market shares. The personality of all the proprietor, the business venture, advertisers, partners, attorneys and franchisees get associated with a final view of a new trademark in the market.
Rights on introduction:
The competitors are refraining from using the same or similar mark in relation to similar goods or services and sometimes even on different goods or in different services. The buyers are vested with rights to take action against the retailer and the trademark owner or manufacturer for any defects in the goods or services when compared with the promised performance. The promise of performance does not arise from use of trademark, but may arise from attendant circumstance of the sale.
Right to trademark: Foreign exporter or importer:
If a foreigner is exporting goods into India under a registered foreign trademark and have a market in India, his mark after being sold in the Indian market would become an Indian unregistered mark and would be protected. Sometimes it becomes contentious between a foreign exporter and an Indian importer as to the ownership of trademark rights. It is desirable to obtain registration and acquire exclusive rights in the trademark to protect the reputation and the goodwill which the exporter or the importer may build. Helps to precisely determine as to who is the owner of the trademark in India, to avoid future disputes as to an importer’s mark.
It is well established principle that an importer who makes an appropriate selection of a trademark of goods and builds a market in his country, he is the proprietor of that trademark in that country; the manufacturer of the goods who sold them to an importer is not the proprietor of the trademark in country of import.
In the “west end watch company” vs. The” Berna watch company” quoted in Haw par tiger balm case, it was held that the importer, who advertises and pushes the sale of goods under a mark which gained wide popularity, relation to the goods sold by him, entitled to the protection for that mark in the country of importation, even against the producer of the goods under the mark in a foreign country.
In a similar situation when disputes arose between Indian importer and Chinese manufacturer for ownership of trademark “Double coin” for tyres produced in china, the jury opined that the issue has to be resolved not with respect to the goodwill in the goods, but with reference to the ownership of the goodwill in the mark, not in the country of export, but here in India. In the case, the customer confidence was built on the strength of the reputation of double coin holding Ltd. China and the goods were marketed in India by Tam tyres linking the goods to the source of manufacture and not the source of the sale, thus the goodwill in the “Double coin” mark for the territory of India belonged to the Double coin holdings of china.
Interestingly the above observations about the territoriality of trademarks have been made after a gap of about 30 years by the division bench of Delhi High Court. The bench has recognized that the use of a trademark in foreign countries cannot give any right whatsoever to the mark in India.
Thus the introduction of trademark to market initially may be with lack of fame and popularity. But once it got the place in the customer’s mind and heart. Then the uniqueness retain forever.
Trademarks are territorial in nature:
Trademark as we all know is territorial in nature. Thus, under the territoriality doctrine, a trademark is recognised as having a separate existence in each sovereign territory in which it is registered or legally recognized as a mark. Thus, the registered proprietor of a trademark would be entitled to the protection conferred by law and exclusivity vested within the territorial limits as conferred by a municipal law. Prior use of a trademark in a dominion would ipso facto not entitle its owner to claim exclusive trademark rights in another dominion.
Meaning of device in trademark:
The meaning of the device in trademark parlance is like pictorial representation of any object or thing. Pictorial representation of objects like animals, birds, landscape, instruments, buildings and so on. It may either be individual or in combination. Such devices are normally capable of being represented graphically. Many kinds of devices may be considered prima facie capable of distinguishing goods of one person from those of others; if they do not indicate the character or quality or other descriptions of the goods in question as listed in section 9(1)(b). For registration of trademarks, it is advisable that the device should contain some striking feature which may imprint itself in the minds of the customers so as to enable them to remember the device and identify the goods bearing the mark.
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