What are the characteristics of Trademark?

Published On: Jul 10, 2018Last Updated: Feb 14, 20247.2 min read

The economic market is oozing with new brands and products every day. To make your goods/services stand out, the Trademark registration in India could prove to be your most valuable marketing tool. If clubbed with the right branding strategy it can in establishing your brand, so the public will identify a certain quality and image with goods and services bearing your trade mark. Hence, the trademark is one of the best possible ways to increase the repute of your brand in the market. Many business owners often wonder what are the characteristics of trademark? Today, we’re here to solve that thought for you. In this blog, we talk about the various characteristics and functions of a trademark. Moreover, these essentials of the trademark will help you understand its importance. So, let’s delve into the realm of trademark features of trademark. 

Functions of Trademark

It is observed that with the prolonged use of a brand name, the products start gaining recognition and popularity among the consumers, on the other hand with the rise in competition the brand name becomes vulnerable to possibilities of getting copied or other people passing off their goods as if they are of the original brand name owner. Thus, making it important for the business owners to have an idea on how to register a brand name. Besides, the characteristics and functions of trademark law prevents this and secures the rights of both the brand owner by preventing the dilution of the mark.  Especially it secures the consumer from being deceived.

Therefore, the most important functions of a trademark were realized to be identification, source, quality, security and advertising.

Identification characteristic of a trademark

Once registered, the trademark officially becomes recognized as the owner’s asset, and only through registration one can gain exclusive rights to prevent anyone from using a same or a similar mark/logo for their brand. Many famous brands are known by their trademark and trade dress, it becomes a standard of recognition like Cadbury is identified through its purple packaging, Colgate is directly associated with a toothpaste, no matter what brand it may be. It has now become a synonym of toothpaste. Likewise, in many such brands the characteristics and functions of trademark make it well known

Also Read: Different Types of Trademarks in India

Source and Quality

Registered trademark gives the consumer the surety of the product’s source and conformity of its quality. People usually associate quality with brand, once the brand becomes famous among the consumers the demand is bound to be increased. All the designers and big brands intrinsically make money only because of the brand name attached to it. A saree stops being a simple saree once the name Sabyasachi is associated to it. The designer can charge whatever he wants claiming the quality standard, and people would buy and pay exorbitant amount of money just because the outfit has the trademark of Sabyasachi on it. This gives an altogether different outlook on the characteristics and functions of trademark.

Also Read: Documents required for trademark registration

Security

A trademark right is not a relative right or a claim right against a person but is an exclusive right effective against the public. Once the trademark is registered it is applicable to everyone who falls under the appropriate trademarks jurisdiction. It gives the unhindered right to the trademark owner to use his rights and abstain any other person from unauthorized use of his trademark or from capitalizing from the trademarks goodwill. The registered trademark owner has the right to sue a person who infringes any such rights and claim for damages incurred. 

Advertising

Social media is one of the most rapidly growing and efficient modes of advertising. With the boom in the e-commerce business the importance of online trademark registration in India has increased. See if Hashtags trademarks here.  As the market is no longer has limitations of being local or national, the security of the brand name is of prime concern. Globalization has a dual effect on the product or service available to the public, in a way it maximizes the business and the profit generation from it, but it also increases the possibilities of trademark infringement and dilution of the brand name due to unauthorized use. Thus, making trademark registration an inevitable need.

What are the characteristics of trademark?

The following are the key characteristics of a trademark: 

Distinctiveness

The most essential feature of a trademark is that it has to be distinct and unique. If a mark is not distinctive or unique, it will not get any protection. For example, Nike is distinctive from all its competitors. 

Non generic

While applying for trademark registration, you also need to ensure that the mark you have created is not generic in nature. It has to have certain special elements which make it different from the others. For example, you cannot name your brand “Bookstore” if you are selling books. This is an essential characteristic of a trademark. 

Use in Trade and Commerce

Amongst the essentials of a trademark, a very important feature is that any mark undergoing registration has to have some use in trade and commerce. Especially for the class of products or services it is applicable in. You can check out the classification applicable to you through our trademark class search toolBesides, this is the topmost consideration for characteristics and functions of a trademark.

Enforceable Rights

Another essentials of trademark is that the rights must be enforceable. Hence, the owner of the trademark should enforce their rights over the exclusivity when there is any infringement or passing off. Read more about trademark infringement and remedies for owners

Essentials of Trademark

Aside from the basic characteristics of a trademark, given above, there are many other essentials of trademark. With its increasing popularity, it is becoming important to establish the features of trademarks to determine the extent of protection. The following are certain essential features of trademarks: 

Non Descriptive

It is an integral characteristic that a trademark must not be descriptive of the products or services it represents. 

Graphical representation

It is also a mandatory characteristic of trademark that the mark must be capable of geographical representation. Hence,  it can be a word, a logo, or any packaging materials, etc. For more information, read on how to trademark a logo

Fanciful marks

Some characteristics of trademarks are special. These are fanciful marks. One of the most famous examples of a fanciful mark is Xerox. It is fanciful because it cannot be associated with photocopies or anything else. Fanciful marks dont have any other meaning except being the brand name.

Arbitrary marks

It is also a special characteristic of some trademarks. An arbitrary mark is usually the use of a generic term but used in a completely different context. For example, “Apple” used in the context of electronic goods and products. 

Grounds of Refusal as features of trademark

According to the trademark law in India, you can only register a trademark if it satisfies certain features of the trademark. The registrar can refuse a trademark on the basis of its certain features. Let’s see what those are: 

Features of trademark that lead to TM objection under Section 9 of the Act are:

  1. The mark lacks distinctiveness;
  2. is descriptive of the characteristics of the goods or services
  3. The mark consists exclusively of marks or indications which have become customary in the established practices of the trade: ISI Mark, UN.
  4. It is likely to deceive the public or cause confusion: Apple air conditioners.
  5. It comprises or contains scandalous matter
  6. Words that come under prohibition in the emblems Act: Ashok chakra, Indian flag.

Relative Grounds of Refusal for trademark registration

  1. If there is a likelihood of confusion between the existing mark and the mark applied for.
  2. Identical or similar trademarks are not open to registration.
  3. Likely to cause deception or dilution of an existing mark.

Conclusion

Trademark Registration in India helps in propelling a business venture or a company in many ways, it gives an exclusive right to the manufacturer to secure its brand and exclude all others from doing so. Hence, these essential features of trademark come into play. In addition to that, in case an infringement occurs the right is statutorily protected. The premise of trademark protection is that no man is entitled to sell another’s mark/ brand name under the guise that it belongs to him; the goal is to protect the owner and the consumer in case of any deceit or confusion.

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Kahini Jhaveri
About the Author

Kahini Jhaveri

Kahini Jhaveri is an IP specialist at LegalWiz.in, with a keen interest in content creation. She holds a B.A. LLB honours from Institute of Law, Nirma University, Ahmedabad. Kahini specializes in Intellectual Properties, specifically Trademark Law.

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