Join our Law Notes WhatsApp Group and stay updated with Legal and Judicial Updates

Section 2 of Trade and Merchandise Marks Act, 1958

From Lawnotes.in
Jump to:navigation, search

Section 2 of Trade and Merchandise Marks Act, 1958 deals with various definitions related to Trade marks.

From the Act

(1) In this Act, unless the context otherwise requires,--

(a) "assignment" means an assignment in writing by act of the parties concerned;

(b) "associated trade marks" means trade marks deemed to be, or required to be, registered as associated trade marks under this Act;

(c) "certification trade mark" means a mark adapted in relation to any goods to distinguish, in the course of trade, goods certified by any person in respect of origin, material, mode of manufacture, quality, accuracy or other characteristic, from goods not so certified and registrable as such under the provisions of Chapter VIII in respect of those goods in the name, as proprietor of certification trade mark, of that person;

(d) "deceptively similar":--A mark shall be deemed to be deceptively similar to another mark if it so nearly resembles that other mark as to be likely to deceive or cause confusion;

(e) "District Court" has the meaning assigned to it in the Code of Civil Procedure, 1908 (5 of 1908);

(f) "false trade description" means--

(i) a trade description which is untrue or misleading in a material respect as regards the goods to which it is applied; or

(ii) any alteration of a trade description as regards the goods to which it is applied, whether by way of addition, effacement or otherwise, where that alteration makes the description untrue or misleading in a material respect; or

(iii) any trade description which denotes or implies that there are contained, as regards the goods to which it is applied, more yards or metres than there are contained therein standard yards or standard metres; or

(iv) any marks or arrangement or combination thereof applied to goods in such manner as to be likely to lead persons to believe that the goods are the manufacture or merchandise of some person other than the person whose merchandise or manufacture they really are; or

(v) any false name or initials of person applied to goods in such manner as if such name or initials were a trade description in any case where the name or initials--

(a) is or are not a trade mark or part of a trade mark; and

(b) is or are identical with or deceptively similar to the name or initials of a person carrying on business in connection with goods of the same description and who has not authorised the use of such name or initials; and

(c) is or are either the name or initials of a fictitious person or of some person not bona fide carrying on business in connection with such goods; and the fact that a trade description is a trade mark or part of a trade mark shall not prevent such trade description being a false trade description within the meaning of this Act;

(g) "goods" means anything which is the subject of trade or manufacture;

(h) "High Court" means the High Court having jurisdiction under section 3;

(i) "limitations" (with its grammatical variations) means any limitations of the exclusive right to the use of a trade mark given by the registration of a person as proprietor thereof, including limitations of that right as to mode of use, as to use in relation to goods to be sold or otherwise traded in within India, or as to use in relation to goods to be exported to any market outside India;

(j) "mark" includes a device, brand, heading, label, ticket, name, signature, word, letter or numeral or any combination thereof;

(k) "name" includes any abbreviation of a name;

(l) "package" includes any case, box, container, covering, folder, receptacle, vessel, casket, bottle, wrapper, label, band, ticket, reel, frame, capsule, cap, lid, stopper and cork;

(m) "permitted use", in relation to a registered trade mark, means the use of a trade mark--

(i) by a registered user of the trade mark in relation to goods-

(a) with which he is connected in the course of trade; and

(b) in respect of which the trade mark remains registered for the time being; and

(c) for which he is registered as registered user; and

(ii) which complies with any conditions or restrictions to which the registration of the trade mark is subject;

(n) "prescribed" means, in relation to proceedings before a High Court, prescribed by rules made by the High Court, and in other cases, prescribed by rules made under this Act;

(o) "register" means the Register of Trade Marks referred to in section 6;

(p) "registered" (with its grammatical variations) means registered under this Act;

(q) "registered proprietor", in relation to a trade mark, means the person for the time being entered in the register as proprietor of the trade mark;

(r) "registered trade mark" means a trade mark which is actually on the register;

(s) "registered user" means a person who is for the time being registered as such under section 49;

(t) "Registrar" means the Registrar of Trade Marks referred to in section 4;

(u) "trade description" means any description, statement or other indication, direct or indirect,--

(i) as to the number, quantity, measure, gauge or weight of any goods; or

(ii) as to the standard of quality of any goods, according to a classification commonly used or recognised in the trade; or

(iii) as to fitness for the purpose, strength, performance or behaviour of any goods, being "drug" as defined in the Drugs Act, 1940' , (23 of 1940) or "food" as defined in the Prevention of Food Adulteration Act, 1954; (37 of 1954.) or

(iv) as to the place or country in which or the time at which any goods were made or produced; or

(v) as to the name and address or other indication of the identity of the manufacturer or of the person for whom the goods are manufactured; or

(vi) as to the mode of manufacture or producing any goods; or

(vii) as to the material of which any goods are composed; or

(viii) as to any goods being the subject of an existing patent, privilege or copyright; and includes--

(a) any description as to the use of any mark which according to the custom of the trade is commonly taken to be an indication of any of the above matters;

(b) the description as to any imported goods contained in a bill of entry or shipping bill;

(c) any other description which is likely to be misunderstood or mistaken for all or any of the said matters;

(v) "trade mark" means--

(i) in relation to Chapter X (other than section 81), a registered trade mark or a mark used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right as proprietor to use the mark; and

(ii) in relation to the other provisions of this Act, a mark used or proposed to be used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right, either as proprietor or as registered user, to use the mark whether with or without any indication of the identity of that person, and includes a certification trade mark registered as such under the provisions of Chapter VIII;

(w) "transmission" means transmission by operation of law, devolution on the personal representative of a deceased person and any other mode of transfer, not being assignment;

(x) "tribunal" means the Registrar or, as the case may be, the High Court, before which the proceeding concerned is pending.

(2) In this Act, unless the context otherwise requires, any reference--

(a) to the use of a mark shall be construed as a reference to the use of a printed or other visual representation of the mark;

(b) to the use of a mark in relation to goods shall be construed as a reference to the use of the mark upon, or in any physical or in any other relation whatsoever, to such goods;

(c) to a registered trade mark shall be construed as including a reference to a trade mark registered in Part A of the register or Part B of the register, as the case may be;

(d) to the Registrar shall be construed as including a reference to any officer when discharging the functions of the Registrar in pursuance of sub-section (2) of section 4;

(e) to the Trade Marks Registry shall be construed as including a reference to any office of the Trade Marks Registry.

Additional Reading

  • Section 2(1)(b) defines Associated Trade Mark as a Trade Mark that is
    • deemed to be,
    • or required to be,
    • registered as associated trade marks under the Act.
  • Section 2(1)(c) defines Certification Trade Mark as
    • a mark adapted in relation to any goods to distinguish, in the course of trade, goods certified by any person
    • in respect of origin, material, mode of manufacture, quality, accuracy or other characteristics
    • from goods not so certified and registrable as such under Chapter VIII in respect of those goods in the name
    • as proprietor of the certification trade mark, of that person.
  • Section 2(1)(f) defines False Trade Description
  • Section 2(1)(j) defines Mark
  • Section 2(1)(m) defines Permitted Use
  • Section 2(1)(v) defines Trade Mark
  • Section 2(1)(uv) defines Trade Description

See Also

  • Section 3: High Court having jurisdiction
  • Section 4: Registrar of Trade Marks
  • Section 5: Trade Marks Registry and offices thereof