In India, trademarks are administered by the Trade Marks Act, 1999. It is used to indicate the fact that a brand or a logo that can be used to distinguish one’s product and services from those provided by others in the market. The protection provided by the Trademark Registration forbids other people from using the same. A registered trademark is an intangible asset that is used to protect company’s investment in the brand or symbol.
A TM is a symbol which is used when an application for the trademark is registered with the trademark registry established in 1940. It simply means that one claims to be the proprietor of the trademark. In simple words, it is a symbol used on a mark that one intends to use a trademark. However, only a proprietor of a registered trademark can use the R symbol in India. The R symbol signifies that the trademark is registered. Therefore, it enjoys the protection from any kind of infringement. It is administered under the Trade Marks Act. However, it's used after filing a trademark application or before obtaining a trademark registration is considered as unlawful. Despite the difference between the symbols, many trademark owners choose to use the symbol TM despite having it registered.
This is primarily for two Reasons:
- For the purpose of suitability to the look of the mark.
- It is a common perception that a TM symbol holds more weight than an R symbol. The meaning of the same is less known.
The C symbol stands for copyright. Any work can be copyrighted like; artwork, photographs, videography, literary works and many more. It is a reserved right notice, used along with the copyright holder’s name along with the year of publication. A copyright symbol on a product must follow a pattern:
Copyright © Year (Name or any identity of the owner). All Rights Reserved.
The year written here depicts the year when the copyright was published or displayed for the first time in public. The copyright owner who could be an individual, company, firm or a group of organizations, can use its name or an abbreviation. It is governed by the Copyrights Act, 1957 and six amendments have been made in the Act to address the concerns of film and music industry, and protect the concerns of physically challenged artists.
Getting trademarks registered is a great thing especially if one is planning to sell a product and there exist reasons due to which someone would try to copy. When it comes to creating a logo for trademark, it is important to note that some of the fonts and images available online are protected by copyrights. One must make sure to check the copyrights laws existing in the free fonts and images.
Points of difference between TM (™), R (®), and C (©):
- An application for registration of trademarks is received at the Head Office or a branch office of the Trade Marks Registry. The process is governed by the Controller General of Patents, Designs & Trademarks. It is only after the application is given one can use TM, and once registered, one can use symbol R. However, application of copyright registration is governed by the Copyright Office.
- Any unauthorized use of the trademark registry i.e. the mark with R symbol by anyone other than its owner amounts to infringement. It is an offense punishable with a term extending to three years or with fine or with both. The Copyrights Act provides both civil and criminal remedies for infringement. The owner can claim remedy in the appropriate district court having the jurisdiction.
- It is not essential for a person to use a TM symbol. Whereas it is essential to secure registration of a symbol or a mark by using the symbol R. It is important to use the C symbol with a pattern discussed above.
- Hypothecation or security: Hypothecation refers to an arrangement where a person borrows money from banks by collateralizing an asset (that may be an intangible asset), without transferring its title and possession. A registered trademark (a symbol R) can be hypothecated for the purpose of security in order to secure loans. Here it is pledged in a similar manner as an immovable property is bonded. However, this is not possible in the case of copyright.
- Assignment of Trademark and Copyrights: A copyright holder can transfer the ownership. In return, the owner will receive only a portion of what he might receive if the copyright was retained. Alternatively, licensing of work in a limited capacity is possible, where the owner retains the copyright, yet avails business advantage from the user. Assignment of a trademark is possible in the form of complete assignment to another entity, partial assignment, an assignment with and without goodwill.
- Unlike copyrights, trademarks do not expire and last forever as long as one pays a fee after a set term of years. Similarly, one may choose to mark TM for as long as the trademark is not registered. The duration of copyrights protection is dependent upon several factors. The protection may last for as long as the life of the author or the creator.
Over the past decades, there has been an increasing awareness about the importance of knowledge societies and therefore enactment of Intellectual Property laws and their strict enforcement has facilitated the expansion of powers of investigation and technological protection measures. In addition to this, the judicial system in India has enthusiastically brought the vision of a knowledge economy. There have been orders passed by the courts that have passed intrusive powers in the hands of trademark and copyright owners. Important amendments have been made in the law to provide technology protection, rights management, and statutory licenses. All these aim to provide owners or creators the right to use the mark or piece of work exclusively and earn royalties.
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