A trade mark must comprise the following essential features:
1. It must be a mark, i.e. a device, brand, heading, label, ticket, name or abbreviation of a name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination of the aforesaid e.g. the M in golden lettering and uniquely stylised of Mc Donald’s, the Purple and Gold combination of colours as for Cadbury’s, names like that of designers like RITU BERI.
2. It must be capable of graphical representation. A trade mark cannot be without any form / representation. Sound marks and smell marks are recognized in some countries.
3. It must be capable of distinguishing the goods or services of one proprietor from those of others. Invented words are considered inherently distinctive like RIN for washing powder, SONY, LENOVO and AKAI for electronics, YASHIKA and KODAK as they are coined words having no dictionary meaning. Common surnames or personal names may not be considered inherently capable of distinguishing and they may be registered on proof of acquired distinctiveness through long and consistent use of the trade mark like JOSHI for wada pavs, CADBURY for chocolates, BINANI for cement, MAHINDRA for automobiles or TATA for fast moving consumer goods.
4. It must be used or proposed to be used in relation to goods or services. Non use of a trade mark post registration for certain time as prescribed under law may lead to its cancellation.
5. The use must be for the purpose of indicating a connection in the course of trade between the goods or services, and some person having the right to use the mark either as proprietor or as permitted user.
2. Functions of a trademark
Some of the functions of a trade mark are:
1. It identifies the product and its origin.
Illustration: You buy jeans with the brand LEVI’S imprinted on it. You identify as originating from Levi Strauss & Co., California.
2. It denotes a consistent level of quality and standard of products / services that are usually provided by the source that is known by the trade mark.
Illustration: You expect that the LEVI’S jeans you purchased would be of certain quality in its material, design, sales services and conforming to standards maintained by the company. This would be distinct from a pair of unbranded jeans, where you cannot hold anyone liable for its quality or design etc.
3. It assists in marketing and advertising the products / services by building a connection / recognition in the minds of the public and consumers / customers.
Illustration: Thus, branding of its jeans helps LEVI’S products to be marketed and advertised under the brand and develop a connection with the customer. So, the customer sees an advertisement of LEVI’S straight fit jeans and goes to a shop and simply asks for the brand and style to get a product that was seen in a adertisment.
4. Goodwill and reputation acquired through use of strong trade marks can be of commercial value and can be commercialized in the same manner as tangible property.
Illustration: The brand / trade mark of a company can be valued and such value of the brand can be used as valuable security for obtaining financial credit facilities.
Therefore, it may be said that to a great extent most of our purchases are triggered by looking at the trade mark, logo or brand name of a particular company. This is because the company assures us of a particular quality and has created an impact on our minds.
For instance, let us look at the company McDonald’s. Many of us identify with the Fillet-o-Fish burger or the Aloo Tikki burger and know that it belongs to an American fast food chain called McDonald’s. While eating the burgers, we are assured of a particular quality and know that it is different from a KFC zinger burger. The trademark of McDonald’s i.e the yellow M has created an image in our minds and therefore serves as an advertising tool for Mc Donalds.
We can also look at companies like Levis, Pepe or Lee. Their brand value is so strong that customers are easily able to identify with their trade marks and are guaranteed a particular standard and quality. Although, a Levis, Pepe or Lee pair of jeans will be far more expensive as compared to a local brand, customers (depending upon their purchasing power) will choose to buy from them primarily because of the quality it guarantees.
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