Trade marks. by the Trade Marks Act, 1905 (English) (5 Edw. 7, c. 15), s. 3:-
A 'mark' shall include a device, brand, heading, label, ticket, name, signature, word, letter, numeral or any combination thereof.
A 'trade mark' shall mean a mark used or proposed to be used upon or in connexion with goods for the purpose of indicating that they are the goods of the proprietor of such trademark by virtue of manufacture, selection, certification, dealing with, or offering for sale.
A 'registrable trademark' shall mean a trade mark which is capable of registration under the pro-visions of this Act.
Subject to the Trade Mark Acts, the owner of a trademark has a right to its use in connection with the goods associated with it, whether or not it is registered or registrable by him, and if that right is infringed by a sale of other goods under his mark, or a colourable imitation or otherwise so as to be calculated to deceive a purchaser that those goods are goods of his manufacture, sale or mark, the owner is protected by the common law action of passing off, one of the forms of deceit, and see title TRADE DESCRIPTION.
The (English) Trade Mark Acts, 1905 to 1919, provide a further protection. Trade Marks may be regis-tered in the Register of Trade Marks, of which the Comptroller-General of Patents is the Registrar under Part A or B of the Register. The effect of registration under A (see ss. 39 to 45 of the Act of 1905 as amended by the 1909 Act [2nd Sch.)] is, that, subject to the statutory provisions, the registered trademark in itself becomes the ex-clusive and assignable property of the owner in connection with the class of goods for which it is registered, for the infringement of which the statutory remedies are available. No unregistered owner can avail himself of any such remedy for infringement of a trade mark (apart from passing off) unless the mark was in use before 13th August, 1875, and has been refused registration by the Registrar (s. 42 of 1905). The effect of registration in Part B of the Register is that the registration affords prima facie evidence only that the registered proprietor has the exclusive right to use the trademark but that it is open to the defendant in an action for infringement to prove that the user of which the plaintiff complains is not calculated to deceive or to lead to the belief that the goods, the subject of such user, were goods manufactured, selected, certified, dealt with or offered for sale by the proprietor of the mark.
As a rule trade marks must be registered within twelve months after application. After seven years, registration under Part A is conclusive. For the general law relating to application, inquiries, opposition and registration, etc., see the Acts. A trade mark can only be assigned in connection with the goodwill of the business in the goods for which it has been registered (s. 22 of 1905); and see Addenda.
A county Court may not entertain an action for infringement, Bow v. Hart, (1905) 1 KB 693.
As to the marking of Irish hand-woven goods, see the Irish (English) Handloom Weavers Act, 1909. See also Trade Mark Rules, 1920 (S.R. & O. 1920, No. 397) and 1925 (S.R. & O. 1925, No. 1057), and consult Kerly on Trade Marks.
It means 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; and-
In relation to Chapter XII (other than s. 107), a registered trade mark or a mark used 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, as the case maybe, and some person having the right as proprietor to use the mark; and
In relation to other provisions of this Act, a mark used or proposed to be used in relation to goods or services for the purpose of indicating or so to indicate a connection in the course of trade between the goods or services, as the case may be, and some person having the right, either as proprietor or by way of permitted user, to use the mark whether with or without any indication of the identity of that person, and includes a certification trade mark or collective mark. [Trade Marks Act, 1999 (47 of 1999), s. 2 (1)(zb)(i)(ii)]
It means 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. [Bureau of Indian Standards Act, 1986 (63 of 1986), s. 2 (u)]
The term 'trade mark' means 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 that mark. The function of a trade mark is to give an indication to the purchaser or a possible purchaser as to the manufacture or quality of the goods, to give an indication to his eye of the trade source from which the goods come, or the trade hands through which they pass on their way to the market. Thus, the distinction between a trade mark and a property mark is that whereas the former denotes the manufacture or quality of the goods to which it is attached, the latter denotes the ownership in them. In other words, a trade mark concerns the goods themselves, while a property mark concerns the proprietor. A property mark attached to the movable property of a person remains even if part of such property goes out of his hands and ceases to be his, Sumat Prasad Jain v. Sheojanam Prasad, AIR 1972 SC 2488: (1973) 1 SCC 56: (1973) 1 SCR 1050.
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