UNIQUE: The Taj Mahal Hotel at the Gateway of India in Mumbai has acquired the unique distinction of being the first building to be awarded a trademark, registered in the Trade Marks Registry. This ensures that nobody can build a similar structure in India or out of the country.
By, Dr Vinod G Shirodkar .
For the first time buildings have been brought under the Intellectual Property Act. The implication is that builders can also now seek trademarks for unique structures…
ONE of the most important desires of any human being is to own property — as property is an important asset owned by people in the world. Property provides dignity, status and respect for the holder. Apart from physical and tangible property there has existed one more form of property from many years all over the globe and that is the property generating from the human brain, this is well-understood the world over as “intellectual property” and it is intangible, incorporeal and abstract property.
The outcome of intellectual property is ideas, creation, creative ability, some secret knowledge to do with business, medicine, art, culture, knowledge from customs and traditions, innovations in different area or walks of life, etcetera. The source of such intellectual property lies in the brains of human beings and this and it has been there right from the primitive to the Stone Age civilization, although it gained importance and value only in recent times.
These intellectual properties like physical and tangible property are also protected by different laws for many years and recently, these protection laws have been developed to a great extent to meet the demands of the world at large.
Some intellectual properties are artistic work like music, sculpture, art, literature, painting and so also trade secrets, domain names on Internet, trademark/service mark, invention, indigenous and traditional knowledge, computer programs, artistic work, designs which may include design of goods or packaging, or it may be industrial designs which include layout design of integrated circuit, plant varieties and knowhow of the same, biodiversity, geographical indication, and among all these fashion law which is of recent origin.
One of the most important intellectual properties is the trademark and service mark. The manufacturer or supplier of goods makes sure that although the goods produced by him are similar to those manufactured by others, their distinguishing marks are different. The importance of trademarks was recognized only after the industrial revolution which enabled large scale production, distribution of goods and publicity through different media. It is in this context that the trade marks play a very important role in the modern commercial market.
A trademark is anything that is associated with goods or services for the purpose of recognition and identification of the same. So from this point of view a trademark can be something which identifies and recognizes any product/goods, it mostly guarantees its quality, it advertises the product, and it creates an image of the product or service in the minds of the public, particularly the consumers or the prospective consumers of such goods or services.
The marks associated with the goods or services come to acquire a reputation and goodwill around them. Trade mark plays a very important role in the development of economy of any Country. Trademarks establish goodwill between the source of a product or service and the consumers or the prospective consumer. Trademarks are an asset which forms the foundation of any business to the ultimate purchaser or the consumer and play an important role in the commercialization and growth of the industries.
The concept of trademarks in this modern era has brought a transition in the law to do with trademarks and it is in a way, a great challenge for the team drafting the legislation in the country. A trademark which is registered under statute law is called a registered trademark, whereas a trademark unregistered is called common law trademark.
THE definition and meaning of trademarks now in recent times has taken innovative and flexible form due to the developments taking place due to the creativity and intelligence of people. For example, sound is given the status of a trademark although the sound trademark is not defined by the Trademarks Act 1999. There is the form of non-conventional trademark to do with taste, shape, smell, texture, motion, etc, which are not conventional like the words mark, logo, sign, symbol, etc. In India the sound trademark is being popularly utilized to identify the products.
Trademark is developing more and more due to innovation and novel creation by people, who are now trying to protect the same from infringement and passing off, by remaining vigilant, alert and safeguarding the same in different innovative ways. For example, in a recent development, Trade Mumbai Mark Registry has registered the image of the Taj Mahal Hotel in Mumbai in June 2017and given it a trademark which is a landmark registration. This is the first time a structure in India has been registered, so also the second building structure which has got its trademark registered on the Bombay Stock Exchange Ltd in June 2018 for its Phiroze Jeejeebhoy Towers which is a 28-storeyed building.
A trademark provides protection to the owner of the mark by ensuring the exclusive right to use it to identify goods or services, or to authorize another to use it in return for payment. The period of protection varies, but a trademark registration can be renewed indefinitely on payment of additional fees.
Although registration of a trade mark is not compulsory, it is advisable to apply for registration, because registration provides a cost-effective way to preventing infringement, and also prevents others from appropriating and registering your trademark. In addition, registration is a guarantee of immunity to infringement actions based on the registered trademarks of other parties.
Internationally, India enjoys membership in the World Trade Organization. In Madrid Protocol, amongst G-20 economies India ranks 14th and this will help Indian trademark owners to register their trademarks at WIPO in member countries, by filing a single application and also allowing other member countries to register their mark in India.
There are a number of conventions, agreements and treaties and so also an enforcement system by the government to protect intellectual properties like Adelphi Charter on Creativity, Innovation and Intellectual property, TRIPS (Trade Related Aspects of Intellectual Property Rights), DOHA declaration, intellectual property organizations which are founded by treaty, Paris Convention for Protection of Industrial Properties, WIPO (World Intellectual Property organization), Berne Convention for protection of literary and artistic work .
Dr Vinod Shirodkar has a PHD in Law on Intellectual Property Rights from the VMSalgacar Law College. He is also one of the Directors of the Real Group of Companies.