Collective Marks

INTRODUCTION

Collective Marks could be defined as marks or signs which distinguish in accordance with the geographical origin, raw material, method and mode of manufacture or common characteristics of goods and services using the collective marks. Collective Marks come under the ambit of The Trademark Act of India, 1999, and broadly under the Intellectual Property Rights in India. Several countries have made provisions under their Intellectual Property laws to protect the collective marks.

Trade Marks generally work on the term “badges of origin” which means that the mark indicates an individual source of goods and services. However, Collective Marks can be as an exception to this notion as it can be source from a variety of traders provide that the trader belongs to the association who owns that particular Collective Trade Mark. Registration of goods and services as Collective Marks are encourage for promoting the characteristic of a particular region.  

COLLECTIVE MARK UNDER TRADE MARKS ACT, 1999

Collective Marks is defined under section 2(1)(g) of the Act. It states that Collective Mark is a Trade Mark distinguishing the goods and services of members of an association of persons [not being a partnership within the meaning of the Indian Partnership Act, 1932 (9 of 1932)] which is the proprietor of the mark from those of others. Collective Marks under the Trade Mark Act, 1999 is in accordance with Article 7 of the Paris Convention for the protection of Industrial Property. As an obligation under the 1998 treaty.

Regulations relating to Collective Marks are dealt in sections 61 to 68 of the Indian Trademark Act of 1999.

Section 61:

This section deals with the special provisions for dealing with collective marks. It states that Collective Marks goods or services of association of person, proprietor of the mark; which are distinguish from others. The clauses mentioned in this section deals with the registration of new Collective Trade Marks. Further, it deals with the registration of a trademark that belongs to a group or association of persons. The use thereof is reserve for members of the group or association of persons.

Section 62:

Section 62 deals with the fact that Collective Mark that has come up for the registration. They must not be misleading in character or significance. A Collective Trade Mark should be clear and non-ambiguous. It must not create confusion in the mind of the public. Such marks shall not be register. In case a mark is interpret wrongly then the registrar may need some indications in the application.

Section 63:

This section deals with the application that has to be accompanied by the regulations governing the registration of Collective Marks. It also includes regulations against misuse and such other matters relating to collective marks.

Section 64:

Section 64 deals with the acceptance of the application made to the registrar in accordance with section 63 of the Act. Post filling of the application by the applicant/s. If the registrar is of the opinion that all the requirements are in harmony with the regulations. Then the registrar may accept the application. He may do so either unconditionally or under required conditions; which shall include amendments of the said regulations as he may deem fit.

Section 65:

This section deals with regulations for inspection. Every application shall be open for inspection. Inspection can be by any public who is attach to the application. This in public interest.

Section 66:

Any amendment in regulation will be subject to only the amendment file by the registrar.

Section 67:

Section 67 deals with the proceedings that a registered proprietor of a Collective Mark may institute in the case of infringement. The court in such case may take account:

1. any loss suffered or
2. likely to suffer or
3. likely to suffer by authorized users.

The Court may also give such directions as it thinks fit as to the extent to which the plaintiff shall hold the proceeds of any pecuniary remedy on behalf of such authorized users.

Section 68:

This section deals with the additional grounds for removal of a Collective Mark which is already registered.

The registration may be canceled on the following grounds:

• that the manner in which the collective mark has also used by the proprietor or authorized user has caused it to become liable to mislead the public as a collective mark, or
• that the proprietor has failed to observe or to secure the observance of the regulations governing the use of the mark.

For the application of the registration of the Collective Mark of goods and services. One must follow the guidelines under section 63 of the Trade Mark Act, 1999; and submit Form TM -3 with the prescribed fee. Form TM -66 shall be used in the event; where the applicant intends to apply the mark under more than one class.

Further, such application should adhere to the regulations as required under Rule 128 which includes:

1. The name of the association of persons and their respective office addresses
2. The object of the association
3.  The details of the members
4. The conditions of membership and relation of each member with the group.
5. The person authorized to use the mark and the nature of control the applicant exercise on the use of the collective mark
6. Conditions governing the use of the mark including sanctions
7. The procedure for dealing with appeals against the use of collective marks
8.  Such other relevant particulars as may be called for by the registrar.

CONCLUSION

As the world is progressing, it is becoming more and more important to give a substantial identity to goods and services. They in turn bring a lot of goodwill and profit to the registered owner of the Collective Mark. It is an instrument for distinguishing particular goods and services bringing individuality to it. The examination of a Collective Mark is similar to that of a regular Trade Mark in terms of originality, deceptiveness, and the confusion that might be faced by a consumer; the difference lies in the usage and the ownership of the two.