INDIA Law and Practice Contributed by: Mohit Goel, Sidhant Goel, Aditya Goel and Mehr Bajaj, Sim and San, Attorneys at Law
2. Trade Marks 2.1 Legal Framework and Protectable Signs Trade mark protection in India is governed primarily by the Trade Marks Act, 1999, the Trade Marks Rules, 2017, and the common law tort of passing off. India is also a member of the Paris Convention, the TRIPS Agreement and the Madrid Protocol. The statutory definition of a trade mark is broad and
trader’s goods or services from those of another. India follows the classic spectrum from inherently strong marks (coined, arbitrary or suggestive) to weaker marks (descriptive, laudatory or generic). Descriptive terms routinely face objections unless supported by evidence of acquired distinctiveness. India follows a hybrid approach recognising both prior registration and prior use – a prior user may defeat a subsequent registrant, making commercial use Descriptive marks may become protectable once con- sumers exclusively associate them with a particular source. Evidence includes duration of use, advertising expenditure, consumer recognition, market share, and social media engagement. Well-Known Marks India expressly protects well-known trade marks. Indian courts have recognised trans-border reputation even without local commercial operations, acknowl- edging that global media, social platforms and stream- ing create international awareness. The Trade Marks Office maintains a formal list of well-known marks. 2.3 Trade Mark Registration System Registration is not mandatory, but provides statutory exclusivity, evidentiary presumptions and broader remedies. Passing off protects unregistered marks. Procedure Applications are filed under the Nice Classification; both single-class and multi-class applications are per- mitted. The process involves substantive examination, responses to objections, advertisement, opposition proceedings, and registration. Timelines records legally significant. Acquired Distinctiveness Examination reports are typically issued within eight to 12 months, depending on the Trade Marks Office backlog. Unopposed applications may register within approximately 12–16 months. Opposition proceed- ings can substantially extend timelines. Expedited examination can produce reports within weeks.
covers: • words; • names;
• logos; • labels; • devices; • signatures; • numerals; • letters; • combinations of colours; • shapes of goods; • packaging; and
• other source-identifying features capable of dis- tinguishing one trader’s goods or services from another’s. Sound marks are registrable and have gained increas- ing commercial significance with the growth of digital and audio branding. Indian courts have also afforded protection to trade dress, including packaging, colour combinations, product get-up and overall visual appearance where such elements function as indicators of origin. In 2025, India witnessed a significant smell mark application involving a rose-like fragrance on tyres by Sumitomo Rubber Industries, reflecting the expansion of sensory branding beyond traditional categories. Unregistered trade marks are recognised and enforce- able through passing off actions, allowing businesses to protect goodwill and reputation even in the absence of registration. 2.2 Requirements for Trade Mark Protection The primary requirement under the Trade Marks Act, 1999 is distinctiveness: the ability to distinguish one
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