Trademark Concept

The concept of distinguishing goods or services of the proprietor from those of others was to be found in the requirements for a mark to be registrable. Essentially, whatever the wording used, a trade mark or a service mark was an indication which enabled the goods or services from a particular source to be identified and thus distinguished from goods or services from other sources. Trade Mark is described as capability of 'distinguishing the goods or services of one undertaking from those of other undertakings..

The function of a trade mark is to give an indication to the purchaser or a possible purchaser as to the manufacture or the quality of the goods, the give an indication to his eye of the trade source or the trade hands through which they pass on their way to the market.

A trade mark is the property of the manufacturer/provider. The purpose of a trade mark is to establish a connection between the goods and service and the source thereof which would suggest the quality of goods or services. Ordinarily under the law there can only be one mark, one source or one proprietor. Ordinarily right to user of a trade mark cannot have two origins. A person cannot use a mark which would be deceptively similar to that of the registered trade mark. If, goods are sold which are produced from two sources, the same may lead to confusion in the mind of the consumers. In a given situation, it may also amount to fraud on the public. Thus trademark is not only essential from the view point of trader or manufacturer but also form the view point of public at large.

Distinction between property mark and trademark :
There is a distinction between a trade mark and a property mark wherein the trademark denotes the manufacture or quality of the goods to which it is attached, the property mark 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. Traditionally, a trade mark has always been considered a vital and inseparable part of the goodwill of the business. In fact, the sale of a trade mark without the sale of the goodwill to the same buyer is considered null and void. However, the trade mark can be assigned with or without the goodwill of business though subject to certain conditions.