Difference between Trademark and Design Registration
Difference between Trademark and Design Registration
A design registration protects any new and innovative ornamental design of an article of manufacture. A trademark registration protects a word or words, name, symbol or drawing that is utilised in commerce to distinguish one source of goods or services from that of another.
Put another way, a design registration would enable the protection of the physical appearance of a distinctive product you are planning to sell to the public (so long as that appearance does not affect the product’s function in any way). A trademark would defend the symbols or words you use to identify the product as coming from your specific business. In certain conditions, both forms of protection may be accessible to cover a single design, providing potential rewards for the owner of these rights.
To produce a brief synopsis with reference to the registration of design under the Design Act is:
- No prescribed procedure for the prior publication of an application made relevant to design registration
- This should be followed by screening any request for entertaining any opposition to such registered application
The procedure as defined under the Designs Act as contained under the Patents Act as well as the Trade Marks Act does not address entertaining any registration opposition.
There is a pronounced difference in the legal consequences as defined in Section 10 (4) and 38 of the Designs Act in comparison with Section 31 of the Trade Marks Act that deals with the prima facie validity related evidence, once a trademark is registered.
Unregistered Trademark vs. Registered Trademark
The Trade Marks Act offers statutory rights by means of a registered trademark. However the possessor of an unregistered is not denied legal recourse and representation if his trademark is misused by a person possessing a registered trademark. A design so registered under the Design Act may not be conferred the same statutory rights as that of a more powerful registered trademark under the Trade Marks Act. But, nevertheless can take steps for remedial action against the wrong committed by a defendant by institution by a passing off action. If such steps for action are taken, the plaintiff will have to provide proof in defence that the registered design was made use by him as a trademark which with the purchasing public has created an association with his goods and services and resultant good will. In due recourse, the success of the plaintiff in the proof of the essential ingredients will play a major role involved in passing off action.
