— By Advocate Savina R. Crasto
Introduction
“Piracy begins where creativity ends” – Dr. Kalyan C. Kankanala
Intellectual property (IP) rights are legally recognized exclusive rights of the creation of the mind. Under intellectual property laws, owners are granted certain exclusive rights to a variety of intangible assets, such as musical, literary, and artistic works; discoveries and inventions; and words, phrases, symbols, and designs. Common types of intellectual property rights include copyright trademarks, patents, industrial design rights, trade dress, and in some jurisdictions trade secrets.
IP rights give the creator an exclusive right over the use of his/her creation for a certain period of time. Although many of the legal principles governing intellectual property rights have evolved over centuries, it was not until the 19th century that the term intellectual property began to be used, and not until the late 20th century that it became commonplace in the majority of the world.
Trademark law in India is based on the Trade Marks Act of 1999 and the associated Trade Marks Rules, which were implemented in 2002. The 1999 Act has been very important in the development of trademark law and practice in India. Reflecting the country’s rapid rise as a commercial economic player, India has experienced dramatic growth in applications for trademark registration in just the past few years. Section 56 of the Trade Marks Act, 1999 which, in unequivocal terms, states that if the goods to be exported or services rendered are outside India and trademark is branded in India, then for the purposes of Indian law, that mark is said to be used in India.
However, continued use of a trademark even after termination of a license agreement is not unheard of. In such cases, if the trademark holder has not registered the mark in India, the only remedy available is that of passing off. Therefore, it is highly recommended that trademark owners get their trademarks registered in India for two reasons – to ensure that their mark is adequately protected because it is being used in India and also to prevent other people (licensees after expiry of the agreement) from using their trademark.
Trademarks are a form of intellectual property (IP). Like patents, copyright, industrial designs and other forms of IP, they afford exclusive rights to an intangible asset. It is a distinctive name, sign or logo which uniquely identifies the source of goods and services. The primary aim of the Trademarks Law is to ensure that no-one uses a trademark of another which is similar or identical as to cause confusion in the course of trade in relation to the goods and or services in which it is registered.
However, trademarks differ in important ways from other forms of IP; in order to fully appreciate the role of trademarks, it is useful to explore these differences. From an economic perspective, the most significant difference pertains to the type of market failure the various IP rights seek to resolve. In the case of trademarks, the relevant market failure is the presence of asymmetric information between buyers and sellers.
The purpose of this paper is to trace the paradigm shift in intellectual property and to identify marketing practices and the need for securing the intellectual property.
The Importance of Protecting Intellectual Property
The World Intellectual Property Organization defines intellectual property as “creations of the mind: inventions, literary and artistic works, and symbols, names, images and designs used in commerce.” This material is the intellectual property of its creator, and intellectual property rights exist and exist for a reason: to protect the creators of these original works.
Indeed, most people are not even aware that they own intellectual property. They assume only large corporations with profitable names, logos and brands to protect are the only ones who really possess a need to safeguard intangible assets. But basically anything that is written, visually created, and unique to an individual is intellectual property which means that millions of individuals own more than they believe.
To better understand these effects, it is necessary to know why it is prudent to safeguard Intellectual Property:
- Intellectual property protection plays a catalytic role in inspiring research and development in a country.
- The commercialization of IP is a significant stimulus to economic growth.
- It facilitates transfer of technology such as patent licensing through active use of patent information.
- Trademarks are important components of the IP system which influence private investment and marketing decisions.
- It helps attract Foreign Direct Investment (FDI) and provides conditions for technology transfer.
- It promotes trade and innovation, especially in areas of technology.
- It contributes to technological advancement of industries.
- It improves living conditions, particularly through patents dealing with inventions.
The importance of Intellectual property in India is growing fast, especially in terms of local inventions which have been recognised internationally.
Trade Marks Laws in India
From a legal perspective, a trademark is an exclusive right — a legal monopoly — which pursues the aim of creating new information. It is attributed to the owner to provide an incentive to produce information that is not itself the good being exchanged, but rather an accessory element to the exchange of other products.
India is a fast-growing trademark environment, with brand owners worldwide drawn to its expanding marketplace. India has also aligned its laws with international obligations under WTO and TRIPS. The judiciary plays a crucial role in interpreting IPRs, ensuring compliance with international law, and balancing treaty obligations under Article 51 of the Indian Constitution.
Historically, trademark law in India began with the Trade Marks Act, 1940, which was replaced by the Trade and Merchandise Marks Act, 1958, and later by the Trade Marks Act, 1999 (to comply with TRIPS). This 1999 Act remains the governing law today and reflects India’s rise as a global commercial player.
The judiciary has evolved newer principles to fill statutory gaps, keeping Indian Trademark Jurisprudence in consonance with global trends.
The Role of Trademarks in Economic Development
Intellectual property is a ‘power tool’ for economic development and wealth creation. Intellectual assets now constitute “hidden value” in enterprises, significantly affecting corporate viability and performance. Patents, copyright, related rights, trademarks, geographical indications and trade secrets are major contributors to enterprise value and play an important role in commercial transactions, licensing, and mergers.
Trademark law promotes brand competition, leading to higher quality goods in the marketplace. Consumers benefit through accurate market information and loyalty to reliable brands. Unlike patents and copyright, trademarks can be renewed indefinitely, making them a powerful IP asset. The Trademarks Act, 1999 also expanded the scope of “permitted use,” recognizing unregistered users with proprietor consent.
In India, the economy has shifted from protectionist policies (1947–1991) to liberalization post-1991, which has fueled growth. Intellectual property, especially trademarks, plays a critical role in this new knowledge-based economy.
Suggestions and Conclusion
The TRIPS Agreement aims to reduce impediments to trade by promoting effective IP protection, while ensuring that procedures do not themselves become trade barriers. IP has become integral to corporate business management due to its economic value.
Trademarks perform both macro-economic and marketing functions — they foster accountability, enhance brand competition, and cement customer loyalty. They are effective business tools that communicate strong, focused messages about products, technologies, and companies.
Protecting trademarks is essential for protecting profitability and corporate identity. India has strengthened its IP administration to promote innovation, commercialization, and foreign investment, while also safeguarding domestic interests.
In the 21st century, nations are translating knowledge into wealth through research, development, and innovation. Knowledge-based assets like ideas, designs, and innovations must be encouraged and protected, ensuring creators are rewarded for their contributions to socio-economic and cultural development.