A Global and Local Outlook
Elgar Intellectual Property Law and Practice series
Edited by Irene Calboli and Jacques de Werra
Chapter 23: TRADEMARK TRANSACTIONS IN INDIA: EXPLORING THE GENRE, SCOPE AND CONSEQUENCE
Trademark transactions have become indispensable for doing business in India in its domestic and international dimensions while being crucial for growing business practices such as franchising, merchandising and technology transfer. A trademark indicates the source or origin of a product or service and hence allows consumers to make generalisations regarding its quality. In the process a trademark serves as a business identifier and becomes a valuable property of the owner. This dual function of trademarks as an indicator of source and as a valuable property goes to define the structure of trademark transactions in India. Trademark transactions in India are regulated by both the major sources of law, that is, statutory law and common law. For contractual transactions related to registered trademarks it is the Trade Marks Act, 1999 together with the Contract Act, 1872 that provide the bulk of governing law, while common law is additionally relevant for unregistered trademarks. Apart from this, the Specific Relief Act, 1963 and taxation statutes4 also inform various aspects of trademark transactions in India. This chapter presents an exposition and analysis of legal provisions and judicial precedents regulating trademark transactions in India together with related business practices.While license and assignment are the two forms in which trademark transactions manifest themselves, this chapter delves into various aspects of these contracts, such as form, type, term, extent and registration. Rights and liabilities of the parties that emanate from such contracts have been elaborated.
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