INTRODUCTION
"Collective mark" means a trademark capable of distinguishing the goods or services of members of an organization of persons which are not a partnership within the ambit of the Indian Partnership Act, 1932, which is the owner of the trademarks from those of others, it is so defined in section 2(1)(g) of the Trade Marks Act, 1999. They are used by associations to relate themselves with a level of quality or accuracy. Associations have to ensure compliance of specific quality standards, only then the members can use the mark. The owner of the collective trademark can even be a public entity or a cooperative. The organization should be of a kind that is capable of suing and being sued. The primary purpose of a collective mark is to protect the consumer against misleading practices. Any group of people with a common goal may be considered a collective.
For example, “CA” is used by the members who are a part of the Institute of Charted Accountants, or “CPA” denotes members of the Society of Certified Public Accountants.
Collective Trade Mark in the Indian context is defined in section 61 of the Trade Marks Act, 1999. The primary purpose of a collective mark is to distinguish the features of the goods or services offered by that association. The general rule of a trademark is that it identifies a trademark with a particular source, but collective marks are in contrast to the general rule as they belong to an organization or an association rather than a single proprietor.
REGISTRATION
Under the intellectual property laws of most countries, there are provisions for collective marks. However, some countries like Indonesia do not recognize collective trademarks.
Article 7 of the Paris Convention talks about collective marks, which mentions that the countries shall protect collective marks even if those associations do not have an industrial establishment and each country has the authority to decide which collective marks are to be protected. They may refuse to protect a collective mark if they feel it is opposed to any public policy.
In India, the former two legislations for Trade Marks namely,
- The Trade Marks Act of 1940 and Trade and
- Merchandise Marks Act of 1958, did not deal with the registration of Collective Trade Marks per se. However, it later got included in sections 61-68 of the Trade Marks Act, 1999.
Marks which are capable of deceiving others and which may cause confusion in the minds of others cannot be registered. A collective mark should carry an indication that it is a collective mark.
For example, if a person uses a mark which is very similar to an already registered collective mark and the concerned person uses that mark in order to confuse potential consumers to associate his mark to that which is already registered, such a mark cannot be granted registration.
While applying for a collective mark, the application should specify who the people who are authorized to use that mark are. The Registrar of trademarks has the authority to either accept it conditionally, absolutely, or even to reject the application. The application for the registration also carries guidelines as to the rules which should be followed by the users of the mark. The associations themselves should prescribe these rules.
The application should contain certain necessary information as to the nature of the mark, the name of the association along with their address, the objective with which the association was formed, the condition of the membership, etc. or any such information as the Registrar may deem necessary. If the collective mark is accepted, it is published in the trademark journal so that any person who may have any grievances can file a complaint about the opposition. The conditions for the grant of a collective trademark also include sanctions against the misuse of the mark.
A collective mark may be revoked if it has failed to comply with the regulations governing the use of the mark or if the user has done anything to mislead the public about any of the significant characteristics the collective mark is supposed to signify. In a suit for infringement by the proprietor of the registered mark the court takes into account any loss suffered by the plaintiff and may direct for any pecuniary remedy as it may deem fit for all the authorized users of the collective mark (sec 67).
COLLECTIVE MEMBERSHIP MARKS
Members of a collective use a collective trademark, whereas a collective membership mark is used to indicate membership in a collective. The members in the latter do not use the mark to distinguish their goods and services from that of another.
For example, REALTOR identifies the National Association of Realtors, which is a North American trade association in North America for the real estate industry. It is a collective membership mark and not a collective trademark.
DIFFERENCE BETWEEN COLLECTIVE MARK AND CERTIFICATION MARK
Certification Marks and Collective marks are quite similar in many aspects as registrants who are not the owners use them both. Only particular members of the organization can use a collective mark. However, any person who complies with the standard specified by the owner of a certification mark can use it.
For example, any gold jewelry which conforms to all the standards laid by BIS can have the Hallmark on it to show its level of purity, but only people who are members of ICAI can use the mark of a CA.
CONCLUSION
Given the current market trend, collective marks have become an instrument used by consumers to differentiate between various brands/companies competing in the sale of similar goods and services. Correct use of the collective mark can assist the company in Goodwill building in terms of quality, accuracy, origin at an early stage. The examination of a collective mark is quite similar to a regular trademark in regards to originality, deceptiveness and the confusion that might be faced by a consumer; the difference lies in the usage and the ownership of the two.
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