What is Trade Description in India? – An Overview

For registering a Trademark or a brand name in India, it is crucial to give a suitable and accurate trade description. It will be beneficial at the time of different steps of the Trademark Registration process, especially in distinguishing your brand or mark from other similar brand or mark based on the trade activities or descriptions of trade. Also, in case of any mistake in a description of Trademark, there will be a chance that the application of Trademark Registration would get declined. Therefore, the overall procedure for the same should be submitted with care.

What is the Role of Trade Description in Trademark Registration in India?

As the name suggests, Trade Description, in brief, describes the products or services that a company/entity or an individual is going to sell. The primary purpose of adding its description is to avoid manufacturers, retailers, or service providers from deceptive consumers.

The Trademarks Act provides authority to the judiciary to punish individuals or companies who make wrong claims regarding any products or services they sell. The Section 104 of the Trademarks Act^[1], imposes punishment on an individual or a company who sells, or hire or exposes for sale, the product/service which gives wrong Trademark impression or fake trade description.

Section 101 of the Trade Marks Act – Meaning of Applying for Trade Descriptions and Trademarks

An individual has to apply for a Trademark or its description to products or services if who:

• Applies for the products themselves or use it concerning services;
• Encloses, places, or appropriates the products which is sold, or exposed for sale or had in possession of sale for the trade or manufacture purpose. Applies with any package to which a Trademark or its description has been applied;
• Concerning products or services, uses a Trademark or its description in any invoice, sign, business letter, price list, catalogue, advertisement, price list or other commercial documents. The goods are delivered, and services are provided to an individual in pursuance of demand or order made by suggestion to the description of the Trademark as so used;
• Applies for any package with which the products are sold, exposed for sale, or had in possession of sale for the trade or manufacture purpose;
• Use of Trademark or its description in a way likely to the belief that products or services in relation with which are used are designated or described by the Trademark.

Significance of Trade Description

The registered Trademark will deliver the special rights to its owner concerning the Trademark’s description furnished in the application. But, different classes cover several activities; the scope of protection furnished by Trademark will be restricted only to the area mentioned by a trade description in the application of Trademark Registration.

For instance, if an entity or a company deals in the software industry with the brand name or Trademark “PQR”, another entity may use the proposed brand name or Trademark for a trade of other description like for authorized industry or for the purpose of sports. Both these entities can be registered under different classes; however, if the trade description doesn’t match the nature of work, one cannot apply for Trademark Registration. But, the description lies to accept the Trademark application with the Trademark Registrar. The Trademark approval is circumstantial, and it depends on many other justifications.

Applicable Case Laws on Trade Description

The significance of filing a correct description of the trade can be easily understood, supported by well-known case laws.

Yahoo Inc. V. Akash Arora and Another, 1999 Arb L. R. 620

 In this matter, it turns out to be an example of how a particular description of the trade can protect a Trademark.

Interpretation of the Case:

In this case, the particular trade description for Yahoo! Inc. banned the defendant from taking benefit of the original Trademark goodwill. The defendant was stopped from using the confusingly similar mark as they provided the same services. Description of trade help in distinguishing the products and services of one trader, and it lets the public connect the mark with any identity. Here the defendant was being sued for comprehensive advantages with a similar mark or name. In this case, it was held legally responsible as “Yahoo India”, and “Yahoo” was almost similar. The court held that defendant liable for using the same domain name.

P.Manikam V. Assistant Commissioner, 2017

In this case, P. Manikam V. Assistant Commissioner, 2017 (Madras High Court), where the company was selling the same products with the same trade name and its description.

Interpretation of the Case

The complainant has been sold beedies under a style & name “Syed Beedi, ” whereas the Petitioner and another sold duplicate beedies under a similar brand name. They used deceptively same labels as that of a complainant & hence caused harm to its reputation and cheated the clients.

The charges Section 103 & Section 104 of the Trade Marks Act, 1999 were relevant that deals with fake trade description & its penal provisions.

Conclusion

Originality & uniqueness play an essential role in brand making. Therefore, every entity focuses on creating a brand and makes their company stand out in the customer’s eyes. The description of trade further furnishes distinction in products or services in their name and aspects, so it becomes easier for the users or buyer to distinguish. Trademark comes in the depiction when a proprietor of the company’ brand or mark desires to protect the name & eliminate everyone use from using it commercially. The application of registration comprises the trade description and trade activities.

Read our article:Infringement of Trademark: Viable Remedies in the Legal Language