Trademarks are a key component of any successful business marketing strategy as they allow them to identify, promote and license their goods or services in the marketplace and to distinguish these from those of their competitors, thereby cementing customer loyalty. A trademark symbolizes the promise of a quality product and in today’s global and increasingly electronic marketplace, a trademark is often the only way for customers to identify a company’s products and services. Trademark protection hinders moves to “free ride” on the goodwill of a company by using similar distinctive signs to market inferior or similar products or services. Loss, dilution or infringement of a high-value trademark could prove devastating to a business.
World Intellectual Property Organisation (WIPO) is a specialised agency of the United Nations (UN) which oversees the task of international registration of trademarks through Madrid System.
Although it is not possible to obtain an ‘international trademark’, whereby a single trademark registration will automatically apply around the world, the Madrid system permits the filing, registration and maintenance of trade mark rights in more than one jurisdiction on a global basis.
Background-
The Madrid system is administered by the International Bureau of the World Intellectual Property Organisation in Geneva, Switzerland. The Madrid system comprises two treaties; the Madrid Agreement Concerning the International Registration of Marks, which was concluded in 1891 and entered into force in 1892, and the Protocol Relating to the Madrid Agreement, which came into operation on 1 April 1996. The Madrid Agreement and Madrid Protocol were adopted at diplomatic conferences held in Madrid, Spain.
Recent Developments-
There are many significant recent developments trademarks Law Vis a Vis Madrid system. The accession of United States and European Union to Madrid Protocol on 2nd November 2003 and 1st October 2004 respectively is considered as important development.
A record 36,471 international trademarks applications were received in 2006 by wipo under Madrid system. This represents 8.6% increase on figures for 2005.
No. Of developing countries witnessed significant growth in international trademarks filing in 2006.China is the most preferred designation for international protection because of its ever growing economy and trade prospects.
WIPO also promotes use of electronic communication for processing of international applications. In April 2006, WIPO introduced a new online international trademarks renewal service enabling users to maintain their trademarks rights quickly and efficiently, about 22% renewals recorded electronically.
A number of new improvements, including new search facilities, were also introduced to the ROMARIN database which contains information regarding all international marks that are currently in force in the international trademark register. As from January 1, 2007, the ROMARIN data base was made available, free-of-charge, on the WIPO web site.
Indian Perspective-
India is also considering and is in fact inclined towards granting accession to the Madrid system. India is beginning to realize the various advantages of acceding to the Madrid System, in particular that, the applicant for an International registration is required to file only one application, pay one fee in local currency, and is not required at least initially, to submit foreign powers of attorney. Renewals, assignment recorders, changes of name and/or address of an International registration may be affected by filing one document with the International Bureau. Moreover, the payment of a single filing fee and preparation of a single application should result in savings in legal service fees.
India has said that it would join the Madrid System after making due preparations, including modernisation of its trademark offices. Investment and action in this direction should be expedited and Indian providers of goods and services enabled to take advantage of the system without further delay. It also needs to be noted that the Madrid System does not prevent trademark owners from routing their application through the IP offices of member-countries other than their own. If India does not accede to the system early, Indian businesses may be forced to put in their international applications from the IP offices of third countries by setting up minimal operations prescribed for this purpose.
However, keeping in mind the Indian scenario, there are few major concerns and apprehensions that emerge and need to addressed and taken care of before India accedes to the Madrid System.
Few of the major concerns that arise in this respect are summarized as follows:
“It is apprehended that the Protocol applications would produce additional backlog at many already overburdened Trademark Offices where it currently takes over one to two years to examine and process applications.
“The Trademark Offices in India may also require additional staffing, and IT infrastructure and IT trained personnel which will increase the costs of filing domestic applications.
“While corporate will benefit from the deal, the government and local trademark attorneys may lose out as it would reduce local filings considerably.”
“The trademark law and practice in jurisdictions like India, Brazil, Canada, Japan and Hong Kong may disadvantage those basing their International registration on a home or basic application particularly as these jurisdictions have lengthy opposition procedures and a successful opposition to the home or basic application would then necessitate the filing of national applications resulting in additional costs.”
“The increased numbers of initial applications may prompt the designated country trademark examiners to issue a provisional refusal for every reason available, if only to avoid automatic registration.”
“Trademark Offices will need to develop a system for distinguishing International registrations from national registrations. This will result in added record keeping, requiring more personnel and work hours and computerized data bases which do not yet exist in India, Pakistan, Sri Lanka and several other jurisdictions.”
“With more marks registered, there could be a decreasing availability of marks for small entities solely for domestic use.”
“An International application and any future communication pertaining thereto may be in English or in French. The result of the bi-lingual system necessitates the employment of additional multi-lingual staff at the national trademark offices. India inclined to accede to Madrid Protocol.”
At this point it is pertinent to point out that since the Madrid system offers scope for putting in an application for international registration in the trade mark office of any country where the applicant has a substantial commercial interest or is domiciled, and not necessarily in the trade mark office of his own country, failure to join the system is in fact encouraging Indian businesses to use the trade mark offices of other countries that are members of the system. To counter this trend, India is seriously considering its accession to the Madrid Union and strengthens its own trade mark registry and professional skills before such accession. The recent accession of the United States and China has also added a new dimension to the Madrid System.
India realizes the multifarious advantages the Madrid System offers and is at present contemplating accession to the Madrid System. India is planning workable strategies to find solutions to tackle all apprehensions it speculates in this regard! It is already in the process of updating its official website and making possible the trademark search to be conducted online. Further, it is making efforts to make available online trademark journals and the records of the already Registered trademarks and the facility of checking online the status of pending applications .Moreover, the Indian Trademark Registry offices are in the process of inducting more IT trained personnel and having complete computerization of records besides making substantial additions to their main infrastructural facilities.
Conclusion-
The Indian View point Vis a Vis Accession to Madrid System may be thus summarized in few words as follows:
Madrid System definitely is the best system presently available to procure international registration of trademarks as it, to a certain extent, simplifies trademark filings, and connected procedural formalities and may reduce costs. The Protocol, therefore, appears to be worth acceding to! However, before India decides to do so, certain major changes in the prevailing Indian Trademark Registration Regime are warranted, which India is already in the process of adopting. Thus, there exists a strong likelihood that India will soon accede to the Madrid System of International Registration of Trademarks.
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