A trademark is a visual symbol which may be a word signature, name, device, label, numerals or combination of colours used by one undertaking on goods or services or other articles of commerce to distinguish it from other similar goods or services originating from a different undertaking.

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RIGHTS OF A REGISTERED TRADEMARK OWNER IN INDIA
A trademark is a visual symbol which may be a word signature, name, device, label,
numerals or combination of colours used by one undertaking on goods or services or
other articles of commerce to distinguish it from other similar goods or services
originating from a different undertaking. The legal requirements to register a trademark
under the Act are:
 The selected mark should be capable of being represented graphically (that is
in the paper form).
 It should be capable of distinguishing the goods or services of one
undertaking from those of others.
 It should be used or proposed to be used mark in relation to goods or
services for the purpose of indicating or so as to indicate a connection in the
course of trade between the goods or services and some person have the
right to use the mark with or without identity of that person.
A mark can include a device, brand, heading, label, ticket, name, signature, word, letter,
numeral, shape of goods, packaging or combination of colours or any such
combinations.
A trademark can be a registered trademark as well as an unregistered trademark.
Registration of a trade mark confers the following rights on the registered proprietor: -
 The exclusive right to use the trade mark in relation to the goods or services
in respect of which the mark is registered.
 The right to obtain relief in respect of infringement of the trade mark.

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There are two types of remedies available to the owner of a trademark for unauthorized
use of its trade mark by a third party i.e. an action for passing-off in the case of an
unregistered trademark and an action for infringement in case of a registered
trademark. An infringement action is a statutory remedy and an action for passing-off is
a common law remedy.
This symbol is used for an Unregistered TradeMark
This symbol is used for a Registered Trademark
Passing-Off:
The object of passing-off action is to restrain a trade from passing-off his goods as the
goods of another trader. The foundation of a passing-off action is always deception or
possibility of deception. The plaintiff must prove that the action of the defendant has
infringed some proprietary right of his own. The following methods are generally
adopted by persons for representing their goods or business as the goods or business
of another person:
(1) Direct false representation;
(2) Adopting of a trademark which is the same or a colourable imitation of the trade
mark of a rival trader;
(3) Adoption of an essential part of the rival trader’s name;
(4) Copying the get up or color scheme of the label used by a trader;
(5) Imitating the design or shape of the goods; and
(6) Adopting the word or name by which the rival trader’s goods or business is
known in the market.1
Where a man uses his own name or a name under which he trades, in connection with
goods in which he deals it may be a trade mark though unregistered and it is not open
to another trader to use that name for trading purposes in connection with his own
goods so as to mislead the trading public into thinking that they are the goods of the
1 K. T. Puvunny vs. K. T. Mathew, AIR 1982 Ker 309

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plaintiff. If he does so the Court will interfere.2 This right is apart from the rights
conferred on a proprietor of a registered trademark. An action to protect the above right
is called a passing-off action. This action is different from an action for infringement of a
registered trade mark. In a passing-off action, registration of trade mark is not relevant
in order to succeed in obtaining ad interim injunction.3
Infringement
Trademark infringement is a violation of the exclusive rights attaching to a registered
trademark without the authorization of the trademark owner or licensee. Infringement
may occur when the infringer, uses a trademark which is identical or confusingly similar
to a registered trademark owned by another person, in relation to products or services
which are identical or similar to the products or services which the registration covers.
The owner of such registered trademark may commence legal proceedings against the
infringer.
For queries please email to contact@theindianlawyer.in
2Hindustan Embroidery Mills Pvt.Ltd. Vs. K. Ravindra & Co., (1974 76 Bom LR 146)
3Century Traders vs. Roshan Lal Duggar & Co., AIR 1978 Del 250