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Journal of Intellectual Property Rights (JIPR) >
JIPR Vol.14 [2009] >
JIPR Vol.14(5) [September 2009] >
| Title: | Trademark Licensing & Franchising: Trends in Transfer of Rights |
| Authors: | Tomar, Vernika |
| Keywords: | Trademark licensing
trademark franchising
competition law
source theory
source indication
quality control |
| Issue Date: | Sep-2009 |
| Publisher: | CSIR |
| Abstract: | A revolution has ushered in the field of trademarks with the change in the
treatment to licensing under the new Trademarks Act, 1999. The replacement of
the old Trademarks Act 1958, which referred only to ‘permitted use’ and ‘registered
user’ with
the new Act has enlarged the scope of the term ‘permitted use’. The
effect, which has sought to be achieved with this change is, that now
trademarks could be licensed to third parties without the need to register the
licensee as the ‘registered
user’. The
requirement that a license be recorded with a Government Agency, i.e. the
Trademark Office has been done away with and the failure to registration does
not render a license invalid. Over the past fifty years, the law governing
trademark licensing has changed drastically in response to the pressures of new
commercial methods of distributing goods and services. With the gradual change
in approach towards licensing, it slowly began to be accepted and now is in
fact encouraged as a commercial phenomenon in the law. One cannot deny that
licensing in trademarks has become a regular commercial practice. But at the
same time the law has provided for fulfillment of certain conditions, viz. ‘quality
control’ or ‘connection
in course of trade’,
which need to be complied with as the trademark holder decides to enter into a
license arrangement. And it is suggested that a trademark owner should avoid an
exclusive license because it may be read as an assignment. Also, even though
the system of keeping records of registered users of the trademark is no more
prevalent, registration continues to carry additional advantages for a
trademark owner under the current scheme of the Act also. Section 53 of the
Indian Trademark Act, 1999 creates an incentive for registration by depriving
the unregistered licensees of the right created by virtue of Section 52 |
| Page(s): | 397-404 |
| ISSN: | 0975-1076 (Online); 0971-7544 (Print) |
| Source: | JIPR Vol.14(5) [September 2009]
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