A trade mark is a visual representation attached to goods for the purpose of indicating their trade origin.

Section 2(1)(m) of the Trade Marks Act, 1999 defines a mark as:

‘Mark’ includes a device, brand, heading, label, ticket, name, signature, word, letter, shape of goods, packaging or combination of colours numeral shape of goods, packaging or combination of colours or any combination thereof.

Section 2(1)(zb) defines “Trade mark” as a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours.

A trade mark serves the purpose of identifying the source of origin of goods. Trade mark performs the following four functions:-

• It identifies the product and its origin. For example, the trade mark ‘Brooke Bond’ identifies tea originating from the Company manufacturing tea and marketing under that mark.
• It guarantees its quality. The quality of tea sold in the packs marked Brooke Bond Tea would be similar but different from tea labelled with mark Taj Mahal.
• It advertises the product. The trade mark represents the product. The trade mark ‘Sony’ is associated with electronic items. The trade mark SONY rings bell of particular quality of particular class of goods. It thus advertises the product while distinguishing it from products of Sony’s competitors.
• It creates an image of the product in the minds of the public, particularly consumers or the prospective consumers of such goods. The trade mark ‘M’ which stands for the food items originating from the American fast food chain MACDONALD’S creates an image and reputation for food items offered by it for sale in the market.

A trade mark should have the following essential elements:-

• Distinctiveness of the trade mark. A trade mark would be considered a good trade mark when it is distinctive. Distinctiveness may be class dependent. What is distinctive in relation to one class of goods may not be so in relation to another class of goods. The trade mark may be united wholly to one or more specified colours and this colour combination may become the distinctive character of the particular mark. Distinctiveness may be inherent or acquired. Inherent distinctiveness means that the mark or get up is distinct in itself from everything else and no one can justifiably claim the right to use it. For instance, a mark in the shape of an invented word like ‘Rin’. Acquired distinctiveness means Distinctiveness through use. Most of the trade marks acquire distinctiveness through use. The trade marks Yashica, Hawkins, Surf and Luxor have acquired distinctiveness through use as also the distinctiveness due to inherent quality of their being invented words.
• The trade mark should preferably an invented word. In fact, the best trade marks are invented words.
• The trade mark, if a word or name, should be easy to pronounce and remember. For example, ‘Bata’ for shoes, ‘Zen’ for car, ‘SONY’ for electronics, ‘Ford’ for car.
• In case of a device mark, the device should be capable of being described by a single word.
• It must be easy to spell correctly and write legibly.
• It should not be descriptive but may be suggestive of the quality of goods. For example, a mark A-I would generally suggest superior quality. Avon cycles for instance.
• It should be short. For instance ‘Tick’, ‘Flex’, ‘Ben’, ‘Rin’.
• It should appeal to the eye as well as the ear.
• It should to satisfy the requirements of registration.
• It should not belong to the class of marks prohibited for registration. For example, a mark contrary to the law for the time being in force or a mark prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950.

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