TRADEMARK REGISTRATION: A NECESSITY FOR BRAND PROTECTION AND GUARD AGAINST FAKE PRODUCTS

1. 
   
2. Trademark is a mark which differentiates a good from other goods and also it informs the consumers about the source of good. This is how trademark has been generally referred which is true, though, now the scenario is a bit different as trademark has been associated with the brand value which is increasing day by day and with these increase there is increase in the negative points like trademark infringement, passing off of goods which is a caution to the brand owners that they should keep a close check on their trademark so that they are far from all these threats. It is agreed that even years before these dangers were present to one’s trademark but one cannot deny that it has increased abundantly with passing time and today no one can even imagine to what extent it has reached.
   However, our trademark law that is the Trade Marks Act, 1999 doesn’t mandate the registration of the trademark and provides a remedy of passing off in case of violation of trademark rights but passing off remedy is more difficult in nature because the burden of proof lies on the plaintiff (the one who files the complaint) and he has to prove the ‘classical trinity’ as referred in the case of Reckitt & Coleman v. Borden (1990) which is as following:
   
   

   • One has to establish that the reputation of plaintiff is hampered by the use of the mark

   
   

   • Establish that misrepresentation made by the defendant to the consumer.

   
   

   • Such misrepresentation has caused or is likely to cause damage to the reputation of the plaintiff’s business.
   After these three grounds are proved the plaintiff will succeed in the remedy of passing off. Further in the case of Durga Dutt Sharma v. Navratna Pharmaceutical Lab (1965), certain points of differences have been highlighted between infringement and passing off:
   
   

   • In an action for infringement the right of the plaintiff is established by the evidence of registration. Therefore, registration itself acts as a proof, whereas, in an action for passing off the right of the plaintiff is based on the reputation of the plaintiff’s business.

   
   

   • Trademark infringement is a statutory right whereas passing off is a common law right.

   
   

   • Trademark registration is an exclusive right and property to be protected in the exclusive right is to use a particular mark whereas in passing off property which has to be protected is the reputation of plaintiff.
   In passing off the defendant might escape the liability if he can show added material on the packaging etc. which distinguishes his goods from the goods of the plaintiff where even the trademark owner has the information of fake products suffers loss and is unable to protect hi brand but that is not in the case of infringement and thus infringement is very strict as a remedy. 
   Thus, it is very necessary to get one’s trademark registered so that they can protect their brands adequately and brand owners can also contact the brand protection services in India which will help them in providing a platform to fight for their rights and Brand and Fakes is one such well known platform.