Appointment of Registrar and other officers 

(1)  The Central Government may, by notification in the Official Gazette, appoint a person to be known as the Controller-General of Patents, Designs and Trade Marks, who shall be the Registrar of Trade Marks for the purposes of this Act.

(2)  The Central Government may appoint such officers with such designations as it thinks fit of the purpose of discharging, under the superintendence and direction of the Registrar, such functions of the Registrar under this Act as he may from time to time authorize them to discharge.

 Power of Registrar to withdraw or transfer cases, etc 

Without prejudice to the generality of the provisions of sub-section (2) of section 3, the Registrar may, by order in writing and for reasons to be recorded therein, withdraw any matter pending before an officer appointed under the said sub-section (2) and deal with such matter himself either de novo or from the stage it was so withdrawn or transfer the same to another officer so appointed who may, subject to special directions in the order of transfer, proceed with the matter either de novo or from the stage it was so transferred.

 COMMENTS

The Registrar can withdraw any matter pending before an officer and deal with such matter himself or transfer the same to another officer for reasons to be recorded therein.

Trade Marks Registry and offices thereof 

(1) For the purposes of this Act, there shall be a trade marks registry and the Trade Marks Registry established under the Trade and Merchandise Marks Act, 1958 (43 of 1958) shall be the Trade Marks Registry under this Act.

(2) The head office of the Trade Marks Registry shall be at such place as the Central Government may specify, and for the purpose of facilitating the registration of Trade Marks, there may be established at such places as the Central Government may think fit branch offices of the Trade Marks Registry.

(3) The Central Government may, by notification in the Official Gazette, define the territorial limits within which an office of the Trade Marks Registry may exercise its functions.

(4) There shall be a seal of the Trade Marks Registry.

 COMMENTS

This section deals with the established of the Trade Marks Registry and branch offices.  It provides that the Trade Marks Registry established under the Trade and Merchandise Marks Act, 1958 shall be the Trade Marks Registry for the purposes of this Act.

The Register of Trade Marks 

                    For the purposes of this Act, is record called the Register of Trade Marks shall be kept at the head office of the Trade Marks Registry, wherein shall be entered trademarks with the names, addresses and description of the proprietors, notifications of assignment and transmissions, the names, addresses and descriptions of registered users, conditions, limitations and such other matter relating to registered trademarks as may be prescribed Logo Registration Bangalore.

              Notwithstanding anything contained in sub-section (1), it shall be lawful for the Registrar to keep the records wholly or partly in computer floppies, diskettes or in any other electronic form subject to such safeguards as may be prescribed Logo Registration Bangalore. Where such register is maintained wholly or partly on computer under sub-section (2) any reference in this Act to entry in the register shall be construed as the reference to any entry as maintained on computer or in any other electronic form.No notice of any trust, express or implied or constructive, shall be entered in the register and no such notice shall be receivable by the Registrar Logo Registration Bangalore.

             The register shall be kept under the control and management of the Registrar.There shall be kept at each branch office of the Trade Marks Registry a copy of the register and such of the other documents mentioned in section 148 as the Central Government may, by notification in the Official Gazette, direct.The Register of Trade Marks, both Part A and Part B, existing at the commencement of this Act, shall be incorporated in and form part of the register under this Act Logo Registration Bangalore.

COMMENTS

This section contains provisions regarding maintenance of a Register of Trade Marks at head office wherein particulars of registered trademarks and other prescribed particulars, except notice of trust, shall be recorded.  A copy of the Register is to be kept at each branch office.  It provides for maintenance of records in computer floppies or diskettes or in any other electronic form.

 Classification of goods and services 

(1)  The Registrar shall classify goods and services as far as may be, in accordance with the International Classification of goods and services for the purposes of registration of trade marks.

(2) Any question arising as to the class within any goods or services falls shall be determined by the Registrar whose decision shall be final.

COMMENTS

Registrar is required to classify goods and services in accordance with the International classification for the purpose of registration of trademarks and his decision is final.

Publication of alphabetical index 

(1) The Registrar may publish in the prescribed manner an alphabetical of classification of goods and services referred to section 7.

(2) Where any goods or services are not specified in the alphabetical index of goods and services published under sub-section (1), the classification of goods or services shall be determined by the Registrar in accordance with sub-section (2) of section 7.

Absolute grounds for refusal of registration 

(1) The Trade Marks 

(a) Which are devoid of any distinctive character, that is to say, not capable of distinguishing the goods or services of one person from those of another person;

(b) Which consist exclusively of marks or indications which may serve in trade to designate the kind, quality, intended purpose, values, geographical origin or the time of production of the goods or rendering of the service or other characteristics of the goods or service;

(c)  Which consists exclusively of marks or indications which have become customary in the current language or in the bona fide and established practices of the trade,

Shall not be registered:

Provided that a trade mark shall not be refused registration if before the date of application for registration it has acquired a distinctive character as a result of the use made of it or is a well-known trade mark.

(2) A mark shall not be registered as a trade mark if 

(a) it is of such nature as to device the public or cause confusion;

(b) it contains or comprises of any matter likely to hurt the religious susceptibilities of any class or section of the citizens of India;

(c) it comprises or contains scandalous or obscene matter;

 (d) it use is prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950 (12 of 1950).

(3) A mark shall not be registered as a trade mark if it consists exclusively of 

(a) the shape of goods which results from the nature of the goods themselves; or

(b) the shape of goods which is necessary to obtain a technical result; or

(c) the shape which gives substantial value to the goods.

Explanation - For the purposes of this section, the nature of goods or services in relation to which the table trade mark is used or proposed to be used shall be a ground for refusal of registration.

Comments

This section stipulates that the trade marks which are devoid of any distinctive character or which consists exclusively of marks or indications which may serve in trade to designate the kind, quality, intended purpose, values, geographical origin or the time of production of goods or rendering of the services or other characteristics of the goods or service or which consist exclusively of marks or indications which have become customary in the current language or in the bona fide  and established practice of the trade shall not be registered, unless it is shown that the mark has in fact acquired a distinctive character as a result of use before the date of application.  It also provides that a mark shall not be a registered as trademarks if-

(i)                It deceives the public or causes confusion;

(ii)             It contains scandalous or obscene matter,

(iii)           It contains or comprises of any matter likely to hurt the religious susceptibilities,

(iv)           Its use is prohibited.

It further provides that if a mark consists exclusively of

(a)  The shape of goods which form the nature of goods themselves, or

(b) The shape of goods which is necessary to obtain a technical result, or

(c)  The shape which gives substantial value of the goods then it shall not be registered as trade mark.

Test of similarity

(i)            In order to come to the conclusion whether one mark is deceptively similar to another the broad and essential features of the two are to be considered.  They should not be placed side by side to find out if there are any differences in the design and if so whether they are of such a character as to prevent one design from being mistaken for the other.  It would be enough if the impugned mark bears such an overall similarly to the registered mark as would be likely to misled a person usually dealing with in to accept the other if offered to him;

(ii)          Apart from the structural, visual and phonetic similarity or dissimilarity, the question has to be considered from the point of view of man of average intelligence and imperfect collection.  Secondly, it is to be considered as a whole and thirty it is the question of his impression;   

(iii)     It is common knowledge that ‘bidis’ are being used by persons belonging to poorer and illiterate or semi-literate class.  Their level of awareness is not high.  It cannot be expected of them that they would comprehend and understand the fine differences between the two labels, which may be detected on comparing the two labels when placed side by side.  The essential features of the two labels are common.  In view of above, there appears to be deceptive similarity between the two labels;

  Limitation as to colour 

(1) A trade mark may be limited a wholly or in part to any combination of colours and any such limitation shall be taken into consideration by the tribunal having to decide on the distinctive character of the trade mark.

(2) So far as a trade mark is registered without limitation of colour, it shall be deemed to be registered for all colours.