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This article is all about the trading trademarks for assignments, mergers, and Transmission. Assignment and Transmission are incorporated under the Trademark registration.
Trademarks are intellectual property. They are identified as a distinctive mark, which helps to identify and differentiate the goods or services of one person to another. Here the mark is in its unique and distinctive form used by the proprietor to make it easily identifiable. In legal terms, it can be called as the name or symbol that a company uses on its products and that cannot legally be used by another company.
Trademark as defined by the Trademarks Act as; a mark which is capable of being represented graphically, and which is capable of distinguishing the goods or services of one person from those of the others, which includes the shape of goods, their packaging, and combination of colours.
A trademark concerning services is that where the mark is used concerning the services, for the purpose of indicating the course of trade between the goods or services, and the person has the right to use the mark.
According to section 2(1), (b) – assignment means, an act by the parties in writing. An assignment will be through an instrument in writing, between the assignor and assignee and executed by them.
The assignment is not a unilateral act between the parties. It must be executed by both parties.
The assignment of trademark means, transfer of an owner’s rights, title, and interest in a trademark, or service mark. The transferring party transfers the right to the receiving part. This means the assignor is moving to the assignee.
According to the section, the registered owner has the right to assign the Trademark after receiving the consideration. It shows in correspondence of the act that the registered trademark owner has the right to vest the rights of a trademark in any other person. This is a process of assignment and gives the effectual receipts for any consideration for such assignment.
The Transmission of Trademark means where the Trademark is transferred by the operation of law or devolution on the representation of the deceased person. This is not an assignment. Where the Trademark is transferred due to some reason of law and transferred to his legal representatives. It can be well said that any mode which is not assignment but is a transmission. It can be with respect to goods or services and restricted to some goods or services and it can with goodwill or without goodwill.
The trademarks are both assignable, transmissible, or can be merged. The trading trademarks cover the concepts of assignment, Transmission and merger of Trademark. The current system, followed by the Indian Trademark, allows for the record, changes in the details of the owner of mark, under two methods:
Here are some situations, where the assignment or Transmission is recorded:
There are multiple ways of the assignment or Transmission of the trademarks under trading trademarks.
This means where the owner transfers the exclusive rights to the other firm or entity. There is complete transfer of ownership of trademarks by one person to another.
Here the owner of the Trademark earns the royalties from the complete transfer or giving ownership of the Trademark.
Here the assignment is restricted to the transfer in respect of specific goods or services. Such as assignment of the bakery items which is limited to particular breads or biscuits only.
This means that the rights and value of a trademark is associated with the product, is also transferred to another entity. The brand X transfers the rights over the Bread and any new development or creation related to the Bread will also be transferred to them.
This means where the owner of the brand restricts the buyer’s rights and does not allow him to use such brand for the products being used by the original owner.
The goodwill attached to the brand concerning such a product already being sold under such brand is not transferred to such buyer.
Such as where the brand X is transferred to the proprietor, but he cannot use the goodwill attached to the brand in the bakery, he will have to develop his goodwill with respect to the product he transferred.
It can be concluded that the trading trademarks when the merger of entities occurs, then the Assignment or Transmission trademarks is performed. Like trademarks, the trading trademarks – Transmission and assignment is incorporated under Trademark Registration.
There are some restrictions which are attached to the trademark assignment or Transmission where the Trademark causes the confusion in the minds of the consumer, it will not be transmitted or assigned. It means where it is of- same goods or services, same description of goods or services or where the description of goods or services is with respect to the associated goods or services.
It can be well said that whenever there is any change in the owner, it has to be informed to the registrar of the Trademark. Whether there is any assignment or Transmission or merger.
Read our article:Step by Step Trademark Registration Procedure