With the immense growth in the scale of business, and the advertising that accompanies it, modern customers rarely have that personal knowledge of suppliers which is the hallmark of a village economy. Even so, their interest in source of supply has not in essence changed. Information about origin is only a means towards an end : their main concern is in the quality of what they are buying. In the case of some goods, part of that quality may be bound up with source in a specific way : as for instance, when the goods will need servicing and the manufacturer or supplier is looked to for the services. But in a great may cases source, particularly when indicated by a Cypher such as a product mark or get-up, does not have even this significance. What it does is to enable the purchaser to link goods or services to a range of personal expectations about quality which derive from previous dealings, recommendations of others, attractive advertising and so on. Nor should it be forgotten that, however persuasively the advertiser may seek to promote this sort of symbol, it retains a neutral character in one sense : once a consumer learns that he does not want particular goods, the mark, name or get-up becomes a significant warning signal.

A law protecting marks, names and get-up accordingly, seems unavoidable in a capitalist economy. In various aspects, however, these laws have tended to develop in a manner that may appear to confer power without responsibility. The trade mark owner acquires the all important right to stop imitations of his indication of source, but his own use is conditioned by few limitations of positive requirement. It is perfectly possible for the public to be taught that a box bearing a particular mark and get-up contains 500 gm. of chocolates and then, by discreet expansion of the packaging, to reduce that amount to 475 gms.(See Surya Roshni Ltd. v. Samana Steel Ltd., AIR 1997 Del 321, where plaintiff was held entitled to temporary injunction for protecting its trade mark).

Different forms of Protecting Trade Mark

If the mark is a registrable one the best way to protect it is by registration. Infringement of the mark can be easily established. If the infringing mark is identical and the goods covered by registration, the success in an action for infringement is almost certain unless the registration can be attacked on the ground of invalidity of registration or the defendant could established honest concurrent user, or acquiescence on the part of the registered proprietor, or prior user. If the marks are not identical but only similar then the plaintiff will have to establish that the defendants` mark is deceptively similar, that is to say, the similarity is such as to be likely to deceive or cause confusion which is a proposition not easy to establish. Ultimately the question of similarity is one for the judge to decide on which opinion may often differ.

In the case of unregistered marks and marks which are not registrable the only way they can be protected is by an action for passing off. The plaintiff will have to prove sufficient use of the mark so as to create valuable goodwill of the business connected with the goods bearing the mark.

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