Common School

Common School – A Path towards Free and Compulsory Education

1. Introduction
1.1 This paper attempts to define the understanding of the term Common school from its very roots. The concept ‘common school’ marched into India through the Kothari Commission 1964 from the United States. Hence the history and evolution of the concept from the days of colonial USA is given substantial importance.
2. Meaning
2.1. The term 'common school' was coined by Horace Mann, and refers to the fact that they were meant to serve individuals of all social classes and religions. A common school was a public school in the United States or Canada in the nineteenth century. Common schools were funded by local taxes, did not charge tuition, and were open to all children, at least all white children. Typically, with a small amount of state oversight, each district was controlled by an elected local school board. Traditionally a county school superintendent or regional director was elected to supervise day-to-day activities of several common school districts.[Ref: wikipedia]
3. Evolution
3.1. Free schools open to all children did not exist in colonial America. Yet, something like modern American public schools developed in the 1840s, when a majority of voters in the northern regions of the United States decided that it would be wise to create state-mandated and locally controlled free schools. Once this model of schooling prevailed, the stage was set for the creation of an inclusive free-school system in the United States.
3.2. In the British colonies of the 17th and 18th centuries, schooling was not compulsory, not free of charge, not secular, not open to all, and not even central to most children's education. Decisions about the provision of schools were made town-by-town. Girls were often excluded, or allowed to attend only the lower -level schools, and sometimes at different hours from the boys. In most towns, parents had to pay part of the tuition to get their young educated. These barriers to the education of all, characterized the New England colonies in the Northeast as well as those in the middle-Atlantic and the South. In those sections of North America which were then governed by Spain or France, even less was done for education. Christian missionaries made intermittent efforts to evangelize Native Americans and African Americans through religious education across North America; but schooling, whether local or continental, was not primarily a governmental matter
3.3. However, in spite of patchwork, casual customs of schooling throughout the British colonies, there was a push for literacy among many colonists, based largely on the Protestant belief that lay people should learn to read the Bible in the vernacular tongue (that is, for British colonists, in English, rather than Latin or Greek). Passing a law in 1647 for the provision of schools, the legislature decreed, towns of over 50 families should provide a school. They did not specify that the education had to be free, nor did they require attendance. The law was weakly enforced. In effect, parents decided whether to send their children; if they did, they had to pay part or all of the cost; and religion was without doubt or question intertwined with education in those days.
3.4. Formal schooling was more extensive for a tiny elite, as it was in America's parent country, England. In the colonies, only a few boys of European ancestry might go on to more advanced schools for English grammar and then, for an even smaller number, tutoring in Latin, leading to Harvard College, or Yale, or William and Mary. The majority of these privileged few then became ministers, rather than leaders in secular society.
3.5. However, as colonial society became more highly populated, more complex, and more driven by faction in the 18th century, competition among rival Protestant denominations and quarrels developed over religious doctrine. In addition, political and financial issues ultimately brought relations between the colonists and the English homeland to a breaking point. Thus, the uses of literacy for argumentation – both in oral and written form – grew. And as agriculture became more commercial and efficient, it brought more cash transactions, more focus on single crops, and the prospect of more distant markets, into the countryside, reinforcing the value of literacy. In the growing coastal towns of Boston, New York, Philadelphia, and Charleston, and in some inland centers like Albany and Hartford, philanthropic groups and churches, responding to the increase in poverty and its visibility, established free schools for the moral education of poor children, on the model of English "charity" schools
3.6. Many of the Revolution's leaders including Thomas Jefferson and Benjamin Rush thought education should be in the top list of priority. Jefferson wrote from France in 1786, advising a friend to "preach a crusade against ignorance," and support free schools in Virginia. Rush, a Philadelphia physician and signer of the Declaration of Independence, proposed a similar bill for free schools in Pennsylvania
3.7. But their efforts failed in their state legislatures. Americans were wary of any increase in taxes (which had been a major point of contention with England) and did not want their fledgling state governments to meddle in affairs that had always been local matters for towns or families to decide.
3.8. Thus, in the countryside, towns still decided whether to have a school, and if so, how to fund it. The cost was usually covered through some combination of taxes on all citizens plus tuition fees for the parents of children who attended. Sometimes parents paid by providing food for the teacher or firewood for the school, but usually it was cash. Parental payments were called "rate bills." Sometimes the school would be free for all children for a set amount of time and then a "continuation" school would be provided for those whose parents were able to pay. Thus the amount of schooling a child received was in the last analysis determined by wealth. At most, there would be a single school for each town or district. Blacks and Indians in general received no formal schooling in these institutions. Even for white children, the terms were brief, the teachers often poorly educated, and the buildings generally in poor condition
4. The Monitorial School Model
4.1. Even in the 18th century in urban areas, there were several different kinds of schools, funded in different ways and with different levels of financial resources. A modest amount of "charity" schooling provided some free instruction for children of poor whites and of African Americans, often subsidized by churches and by state and local government. Such efforts resulted in African Free Schools, "infant" schools for the two- and three-year-old children of the indigent, and other types of sponsorship. As time passed and as concern grew, many cities in the new Republic experimented with a type of charity school, the "monitorial" school, which became popular in England, Europe, and Latin America in the 1810s and ‘20s. Invented by Joseph Lancaster, a Quaker schoolmaster in England, the "monitorial" school model encouraged more advanced pupils to teach those who were less advanced. At a time when boys were routinely paddled for school in fractions, advocates applauded Lancaster's ideas about motivation without corporal punishment, discipline motivated by an active curriculum and competition, neutrality with regard to religious denominations, and, perhaps most important, economy of expense. Lancaster claimed that with his system a single master could teach 500 poor children at a time.
4.2. In New York City and in Philadelphia, reformers organized entire networks of Lancasterian monitorial schools, systems that became the physical and organizational basis of the later public free schools of those cities. Later critics derided the monitorial schools for regimenting their poor students and separating them from other children, but Lancaster's ideas helped popularize the notion of a school "system," referring not only to the pedagogy and curriculum but to the organization of schools into a network.
4.3. For parents with a bit more money, there were inexpensive pay schools advertised in the newspapers, taking in children whose parents could afford a few shillings a quarter. The wealthy educated their children with private tutors or sent them to expensive boarding schools in the English style, now increasingly available to the English-speaking ex-colonials. The cream of society might even send their favored sons and daughters to acquire intellectual and social finesse in academies abroad. Well into the 1820s and ‘30s, "free" education thus connoted only limited privileges granted to the poor, and was distinctly dependent on the goodwill of local congregations, both Protestant and Catholic, or perhaps the largesse of nondenominational philanthropic societies. In New York and elsewhere these charity schools might receive some support, variously from the city council or the state. Our current distinction between "private" and "public" education had not yet crystallized.
4.4. Meanwhile, in the small towns and countryside, where a majority of Americans still lived, school reformers of the 1840s worked to end the discriminatory practices of continuation schools and rate bills, recommending instead that schools be supported entirely by property taxes. In effect, this meant that all property owners would subsidize education for the entire community. Traditional opponents of taxation labeled this an unwarranted and oppressive intrusion of state government into local affairs; however, Henry Barnard, Connecticut's school superintendent, called it "the cardinal idea of the free school system." Reformers also urged the centralization of the little rural districts into larger town-wide units, for better supervision and support. Simultaneously, in urban settings, school reformers of the same period began to focus their efforts on absorbing the charity schools into free public school systems and then trying to attract the children of more affluent parents into these "common" schools. The idea of the school as a common, equal meeting ground took on great force for reformers, and they aimed their criticisms at the evils of private schools. A system of private schools for the rich, said Orville Taylor in 1837, "is not republican. This is not allowing all, as far as possible, a fair start." The present system, Henry Barnard complained, "classifies society . . . assorting children according to the wealth, education, or outward circumstances of their parents." As Jefferson had discovered earlier, however, old practices die hard.
4.5. There remained much support for small-scale district control. In Massachusetts, for example, traditional Protestants of the Congregational denomination rightly perceived that the state would use its influence to discourage the advocacy of particular doctrines in such common schools. In New York state, a petition from a little town in Onondaga County complained that the newly passed school law of 1849 allowed people "to put their hands into their neighbors' pockets" to get support for schools. Roman Catholics in New York City fought the creation of a single public school system, arguing that it would be biased toward Protestant beliefs. Thus, in many states, opponents of the reforms enacted in the first part of the 19th century won repeal in state legislatures and in municipal councils of key elements. In some states, the centralization of districts into towns went through waves of passage and repeal. In 1842, opponents of reform abolished the position of state superintendent of instruction in Connecticut. The Hartford Times, a Democratic paper, called such centralized power "despotic" and "Prussian." Similar attempts to abolish the job of state superintendent failed narrowly in Massachusetts and Ohio.
4.6. Nonetheless, during the 15-year period from 1838 to 1853, most states in the Northeast (from Maine down the coast to Maryland) and the "old" Northwest (Ohio, Indiana, Illinois, Iowa, Michigan, and Wisconsin) authorized the position of state school superintendent and required towns to provide totally free schools through property taxes. What had happened between the generation of Jefferson and the generation of Horace Mann to tip the balance? We should look first at the country's economic development.
4.7. The Industrial Revolution, spawned by the cotton gin and the widespread development of steam engines, for one, had fueled further European immigration into the United States, a sprawling, crowded urbanization, and the differentiation of the economic functions of the country's three main regions in the three decades before 1860. The Midwest became an agricultural powerhouse, as well as a processing and shipping region, spawning new cities and rail transportation. Since the region's labor force was free of slavery, new European immigrants moved into the Midwest en masse. In the Northeast, agriculture, often based on small farms and in hilly country with rocky soil, became less profitable, while factory production, particularly of textiles and shoes, absorbed more and more of the labor force and dotted the landscape with new conglomerations of brick industrial towns and cities. The South, with its slave labor force and its staple crops of cotton, tobacco, and rice, remained largely rural in the decades leading up to the Civil War that would finally put an end to slavery.
4.8. It would be an oversimplification, however, to say that as economies developed, "common" schools flourished entirely as a result. Each stage contributed to progress, and each threatened to provoke a backlash. In particular, the arrival of many Roman Catholics from Ireland and Germany among the immigrants to the northern United States in the 1830s and ‘40s sparked a renewed chapter in the long history of Protestant-Catholic conflict, creating anxieties among leading groups of Protestants, who became persuaded that they should set aside their own denominational tensions and doctrinal disputes, at least in the education arena, while putting forward a program of moral education and a view of history that would support their values. In order to do this, the American elite and the Protestant majority had to be in favor, essentially, of centralized schooling, and they had to abandon some traditions of rural independence, cultural separatism, and local control.
5. The Role of the Whig Party
5.1. The political party that best represented progressive Protestantism in the three decades prior to the Civil War was the Whig Party. Born in the 1820s, the Whig Party as time went on increasingly based its politics on government activism that included programs of institution building, economic development, and moral regulation – resulting in canals, insane asylums, temperance societies whose purpose was to discourage alcohol abuse, and free public schools. Most of the early state superintendents of public instruction of the 1840s were Whigs, and most of the laws to create the first school systems were Whig-sponsored.
5.2. There was some bipartisan support, to be sure. Many Democrats also supported free education for all and wanted schools to teach children morals, the glories of America's past, and the virtues of its political institutions. Yet it fell to the Democratic Party of the day to favor local control and oppose strong state government intervention. Criticizing this view, Whig leader William Seward, the governor of New York, said it was absurd to think that a nation could employ its resources in carrying on war, punishing crime, and fighting sedition but could not employ the same resources to "avert the calamities of war, provide for the public security, prevent sedition, improve the public morals, and increase the general happiness."
5.3. It was a hard-fought battle. But in a relatively short period, from 1837 to 1853, every state legislature in the North passed into law most of the key features of common free school systems. To prevail in these hard-fought battles, common school advocates, working largely through the Whig Party, had to convince a majority of their compatriots that common schools could play a critical role, not just in providing people a more equal chance at education, but in consolidating the country's culture around republican, capitalist, and Protestant values.
5.4. In the South, a regionally strong 19th-century Democratic Party, localism, a laissez-faire tradition about education, and a strong belief in a hierarchical society based on slave labor, combined to thwart the more democratic and middle-class values of the region's school reformers. Free common schools would come to the South only in the aftermath of the 1861-65 Civil War, first introduced and promoted by the Reconstruction legislatures that included black legislators in the 1860s and early ‘70s. Then, in the late 19th century, when Southern white Democrats had returned to power in the state legislatures, the region gradually moved toward free school systems based on property taxes, but separate for blacks and whites and unequal in their resources. Indeed, there was much racial segregation in the North as well, and schools for racial minorities across the nation generally had poorer resources.
5.5. As the modern common school system began to acquire a clear shape in the North between 1837 and 1853, it retained evolutionary, rather than revolutionary, features. Governance, while devolved from strictly local groups, was still shared between local and state authorities, with increasing federal involvement in the 20th century. The amount of control retained to this day by local, elected school boards in the United States is unique among the industrial nations of the world, and testifies to how dearly the concept of local control of school curricula and of their budgets still appeals to the average American.
5.6. However, by introducing a modicum of state regulation, and in persuading local school districts to remove all parental fees for children's school attendance, the common school reformers affected a significant shift. Class bias was ameliorated if not eliminated. The ground was prepared for some integration by race. Both sexes were ultimately seen as entitled to equal educational opportunity Horace Mann declared in 1848 that in America, common, public schools would be "the balance wheel of the social machinery," and the idea of equality of opportunity – in many senses implicit in the texts of the Declaration of Independence and in the U.S. Constitution – was reinforced and expanded by that declaration, and similar reformist credos. However, the balance wheel metaphor has another, perhaps unintended meaning.
5.7. A balance wheel keeps machinery from shaking apart. This is what has kept public schools attractive to most of the public in most parts of the country for the past century and a half. Americans have consistently believed that common public schools are necessary to teach common values, common knowledge of the political system, respect for institutions, respect for property, and other values that are needed to keep a democratic system from flying apart. Thus, while promoting equality, public schools in United States are seen by some as essentially conservative social institutions that continue some level of traditional cultural distinctions on the base of race, class, and even on talent within a democratic framework.
5.8. The retention of local control and the reliance on local taxes to this day creates inequalities in per- pupil expenditures. Organization of school districts along residential neighborhood lines has continued racial separatism in public education, in spite of massive attempts on the part of the federal judiciary to change this over the past half century. And very large public schools practice a certain amount of sub-organization aimed at recognizing scholarly aptitude. To this day, the values and the curriculum of the "common" public schools remain skewed towards the cultural institutions and beliefs of traditional American Protestants. Nonetheless, as promoters of the "melting pot" concept of assimilation, public schools remain popular. Even over the past few decades, which have seen new waves of immigration from developing nations, American public schools have consistently enrolled about 90 percentage of the school-age population.
5.9. The common school system therefore by its evolution would mean a system of education run by the state with common syllabus, free of cost, and uniformity in standard for people of all classes, race and religion in a country within the neighbour hood of the Child.
6. Form here the common school system marched into our country through the Kothari Commission Report in the year 1966. The committee was appointed in the year 1964. This committee report is widely spoken about and this report became the basis of National educational policy 1986 and 1992. When the committee spoke of the Common school its idea of the system was
• Publicly funded schools open to all children irrespective of caste, creed, community, religion, economic condition or social status
• Where access to good education will depend not on wealth or class
• Adequate standards in all schools and at least a reasonable proportion of quality institutions
• No tuition fee is charged
• It meets the expectations of average parents so that they would not ordinarily feel the need to send their children to fee-charging schools outside the system.
Thus it is very clear that the very concept of common school in India is in lines with its meaning in its homeland.
7. Thus a public (state run) school with common syllabus integrating all the good of other boards with the medium of instruction in the regional language within the neighbour hood of the children is what perceived form the term Common school.
8. Constitutional and legal aspects

8.1. Looking in to the Constitutional and legal aspects of the School education, much need not be debated on the education as a Fundamental Right. As on date, Education stands as an established Fundamental Right. Even among those who oppose the system of common school base themselves on their Fundamental Right to education of their choice. However, the irony is that the choice is made from the paradigm of the dominant parent and not from the paramount consideration of the child’s need. The question before us is our path towards the Constitutional directive of Free and compulsory Education, which ought to have been achieved by the year 1960.

8.2. Even before the constitution was fully brought into force we approved its Pre Amble in the form of an Objective Resolution. By this we decided that we shall herein after constitute our nation into a Sovereign Democratic Republic (socialist and secular inserted in the year 1976 w.e.f. 1977) and secure to all citizens few of the very basic concepts. The first and foremost of them is the Justice of Social, Economical and Political. The idea behind saying Justice of Social, Economical and Political by itself signifies that there cannot be complete justice if there is injustice in any one form. The very objective resolution also says to secure Equality of Status and of Opportunity. Meaning to say that without the equality in status and opportunity there is no means for securing the ends of justice.

8.3. Thus every action of the state towards the development of our nation ought to focus to eradicate inequalities in all forms. This idea is emphasised in every possible way throughout the constitution. The very first spell of our Fundamental Rights in Part 3 is the Right to Equality followed by a series of anti negative discrimination clauses and protective discrimination clauses. It is only then under Part IV that the Directive for Free and compulsory education has been spelled out.

8.4. The Directives in Part IV may not be one that could be enforced in the Court of law. But stopping at that end is synonymous of the famous saying ‘Aswathama Athaga’. The story was that with the very saying of those words conch was blown and the reminder of the words were not allowed to be heard. Who was that Aswathama, was not brought to light until the thing to be done was done. Thus in Article 33 of the Constitution, more stress and noise have been given to the words ‘not justiciable’ and the words following them ‘shall however be fundamental in Governance’ have been ignored. By saying Fundamental in Governance it means that the provision of Free and compulsory Education is one of the principle mandates of the Governments both Union and State.

8.5. Thus it is clear that equality should be the blood of our actions. Then how come justice be done in the field of education without equality. Our School system should thus be seen from this scenario. Difference in board, difference in standards, difference in fees difference in infrastructure, difference syllabus all falls heavily against the very concept of equality in education.

9. Issues of minority

9.1. The Linguistic minorities have a special position in the constitution and their interest cannot be compromised before the larger interest. For this should they be deprived of the benefits of a free and compulsory education, should their children suffer the pain of a long journey to school, should they be kept away in a different syllabus.

10. Pluralistic out look
10.1. The common point raised against the common school system is that it deprives the pluralistic characteristic of the Indian Culture. What prevents our state in imparting the pluralistic form of India in a uniform syllabus under a common board within the neighbourhood of each of the child.

Referance:
1. http://www.america.gov/st/educ-english/2008/April/20080423212501eaifas0.8516133.html
2. http://en.wikipedia.org/wiki/Common_school

the history of american common school was taken from the Article by Carl f. Kaestle. the link to the Article is given above.

Carl F. Kaestle is a professor of education, history, and public policy at Brown University. He joined the faculty at Brown in July of 1997, after teaching at the University of Wisconsin and the University of Chicago. His writings include Pillars of the Republic: Common Schools and American Society, 1780-1860, and Literacy in the United States: Readers and Reading Since 1880. Recently he was a principal consultant and professional commentator in the public television documentary "School.”

moral code of conduct for elections

ELECTION CMMISSION OF INDIA - MODEL CODE OF CONDUCT FOR THE GUIDANCE OF POLITICAL PARTIES AND CANDIDATES

1. General Conduct
(1) No party or candidate shall include in any activity which may aggravate existing differences or create mutual hatred or cause tension between different castes and communities, religious or linguistic.

(2) Criticism of other political parties, when made, shall be confined to their policies and programme, past record and work. Parties and Candidates shall refrain from criticism of all aspects of private life, not connected with the public activities of the leaders or workers of other parties. Criticism of other parties or their workers based on unverified allegations or distortion shall be avoided.

(3) There shall be no appeal to caste or communal feelings for securing votes.
Mosques, Churches, Temples or other places of worship shall not be used as
forum for election propaganda.

(4) All parties and candidates shall avoid scrupulously all activities which are “corrupt practices” and offences under the election law, such as bribing of voters, intimidation of voters, impersonation of voters, canvassing within 100 meters of polling stations, holding public meetings during the period of 48 hours ending with the hour fixed for the close of the poll, and the transport and conveyance of voters to and from polling station.

(5)The right of every individual for peaceful and undisturbed home-life shall be
respected, however much the political parties or candidates may resent his political opinions or activities. Organising demonstrations or picketing before the houses of individuals by way of protesting against their opinions or activities shall not be resorted to under any circumstances.

(6) No political party or candidate shall permit its or his followers to make use of any individual’s land, building, compound wall etc., without his permission for erecting flag-staffs, suspending banners, pasting notices, writing slogans etc.

(7) Political parties and candidates shall ensure that their supporters do not create obstructions in or break up meetings and processions organised by other parties. Workers or sympathisers of one political party shall not create disturbances at public meetings organised by another political party by putting questions orally or in writing or by distributing leaflets of their own party. Processions shall not be taken out by one party along places at which meetings are held by another party. Posters issued by one party shall not be removed by workers of another party.

II. Meetings
(1) The party or candidate shall inform the local police authorities of the venue and time any proposed meeting Well in time so as to enable the police to make necessary arragements for controlling traffic and maintaining peace and order.

(2) A Party or candidate shall ascertain in advance if there is any restrictive or prohibitory order in force in the place proposed for the meeting if such orders exist, they shall be followed strictly. If any exemption is required from such orders, it shall be applied for and obtained well in time.

(3) If permission or license is to be obtained for the use of loudspeakers or any other facility in connection with any proposed meeting, the party or candidate shall apply to the authority concerned well in advance and obtain such permission or license.

(4) Organisers of a meeting shall invariably seek the assistance of the police on duty for dealing with persons disturbing a meeting or otherwise attempting to create disorder. Organisers themselves shall not take action against such persons.

III Procession
(1) A Party or candidate organizing a procession shall decide before hand the time and place of the starting of the procession, the route to be followed and the time and place at which the procession will terminate. There shall ordinary be on deviation from the programme.

(2) The organisers shall give advance intimation to the local police authorities of the programme so as to enable the letter to make necessary arrangement.

(3) The organisers shall ascertain if any restrictive orders are in force in the localities through which the procession has to pass, and shall comply with the restrictions unless exempted specially by the competent authority. Any traffic regulations or restrictions shall also be carefully adhered to.

(4) The organisers shall take steps in advance to arrange for passage of the procession so that there is no block or hindrance to traffic. If the procession is very long, it shall be organised in segments of suitable lengths, so that at convenient intervals, especially at points where the procession has to pass road junctions, the passage of held up traffic could be allowed by stages thus avoiding heavy traffic congestion.

(5) Processions shall be so regulated as to keep as much to the right of the road as possible and the direction and advice of the police on duty shall be strictly complied with.

(6) If two or more political parties or candidates propose to take processions over the same route or parts thereof at about the same time, the organisers shall
establish contact well in advance and decide upon the measures to be taken to see that the processions do not clash or cause hindrance to traffic. The assistance of the local police shall be availed of for arriving at a satisfactory arrangement. For this purpose the parties shall contact the police at the earliest opportunity.

(7) The political parties or candidates shall exercise control to the maximum extent possible in the matter of processionists carrying articles which may be put to misuse by undesirable elements especially in moments of excitement.

(8) The carrying of effigies purporting to represent member of other political parties or their leaders, burning such effigies in public and such other forms demonstration shall not be countenanced by any political party or candidate.

IV. Polling Day
All Political parties and candidates shall –
(i) co-operate with the officers on election duty to ensure peaceful and orderly
polling and complete freedom to the voters to exercise their franchise without
being subjected to any annoyance or obstruction.
(ii) supply to their authorized workers suitable badges or identity cards.
(iii) agree that the identity slip supplied by them to voters hall be on plain (white) paper and shall not contain any symbol, name of the candidate or the name of the party;
(iv) refrain from serving or distributing liquor on polling day and during the
fourty eight hours preceding it
(v) not allow unnecessary crowd to be collected near the camps set up by the
political parties and candidates near the polling booths so as to avoid Confrontation and tension among workers and sympathizers of the parties and the candidate.
(vi) ensure that the candidate’s camps shall be simple .The shall not display any posters, flags, symbols or any other propaganda material. No eatable shall be served or crowd allowed at the camps and
(vii) co-operate with the authorities in complying with the restrictions to be imposed on the plying of vehicles on the polling day and obtain permits for them which should be displayed prominently on those vehicles.

V. Polling Booth
Excepting the voters, no one without a valid pass from the Election Commission shall enter the polling booths.


VI. Observers
The Election Commission is appointing Observers. If the candidates or their agents have any specific complaint or problem regarding the conduct of elections they may bring the same to the notice of the Observer.

VII. Party in Power
The party in power whether at the Centre or in the State or States concerned, shall ensure that no cause is given for any complaint that it has used its official position for the purposes of its election campaign and in particular –
(i) (a) The Ministers shall not combine their official visit with electioneering work and shall not also make use of official machinery or personnel during the
electioneering work.
(b) Government transport including official air-crafts, vehicles, machinery and personnel shall not be used for furtherance of the interest of the party in power; (ii) Public places such as maidans etc., for holding election meetings, and use of helipads for air-flights in connection with elections shall not be monopolized by itself. Other parties and candidates shall be allowed the use of such places and facilities on the same terms and conditions on which they are used by the party in power;
(iii) Rest houses, dark bungalows or other Government accommodation shall not be monopolized by the party in power or its candidates and such accommodation shall be allowed to be used by other parties and candidates in a fair manner but no party or candidate shall use or be allowed to use such accommodation (including premises appertaining thereto) as a campaign office or for holding any public meeting for the purposes of election propaganda;
(iv) Issue of advertisement at the cost of public exchequer in the newspapers and other media and the misuse of official mass media during the election period for partisan coverage of political news and publicity regarding achievements with a view to furthering the prospects of the party in power shall be scrupulously avoided.
(v) Ministers and other authorities shall not sanction grants/payments out of discretionary funds from the time elections are announced by the Commission; and
(vi) From the time elections are announced by Commission, Ministers and other authorities shall not –
(a) announce any financial grants in any form or promises thereof; or
(b) (except civil servants) lay foundation stones etc. of projects or schemes of any kind; or
(c) make any promise of construction of roads, provision of drinking water
facilities etc.; or
(d) make any ad-hoc appointments in Government, Public Undertakings
etc. which may have the effect of influencing the voters in favour of the
party in power.
Note : The Commission shall announce the date of any election which shall be a date ordinarily not more than three weeks prior to the date on which the
notification is likely to be issued in respect of such elections.
(vii) Ministers of Central or State Government shall not enter any polling station or place of counting except in their capacity as a candidate or voter or authorised agent.

Frequently Asked Questions (FAQs)

Q. 1. What is the Model Code of Conduct?
Ans. The Model Code of Conduct for guidance of political parties and candidates is a set of norms which has been evolved with the consensus of political parties who have consented to abide by the principles embodied in the said code and also binds them to respect and observe it in its letter and spirit.

Q. 2. What is the role of Election Commission in the matter?
Ans. The Election Commission ensures its observance by political party(ies) in power, including ruling parties at the Centre and in the States and contesting candidates in the discharge of its constitutional duties for conducting the free, fair and peaceful elections to the Parliament and the State Legislatures under Article 324 of the Constitution of India. It is also ensured that official machinery for the electoral purposes is not misused. Further, it is also ensured that electoral offences, malpractices and corrupt practices such as impersonation, bribing and inducement of voters, threat and intimidation to the voters are prevented by all means. In case of violation, appropriate measures are taken.

Q. 3. From which date the Model Code of Conduct is enforced and operational upto which date?
Ans. The Model Code of Conduct is enforced from the date of announcement of election schedule by the Election Commission and is operational till the process of elections are completed.

Q. 4. What is applicability of code during general elections and bye-elections?
Ans. a. During general elections to House of People (Lok Sabha), the code is applicable throughout the country.
b. During general elections to the Legislative Assembly (Vidhan Sabha), the code is applicable in the entire State.
c. During bye-elections, the code is applicable in the entire district or districts in which the constituency falls.

Q. 5. What are the salient features of the Model Code of Conduct?
Ans. The salient features of the Model Code of Conduct lay down how political parties, contesting candidates and party(s) in power should conduct themselves during the process of elections i.e. on their general conduct during electioneering, holding meetings and processions, poll day activities and functioning of the party in power etc.
ON OFFICIAL MACHINERY
Q. 6. Whether a Minister can combine his official visit with
electioneering work?
Ans. No, The Ministers shall not combine their official visit with electioneering work and shall not also make use of official, machinery or personnel during the electioneering work.

Q. 7. Whether Govt. transport can be used for electioneering work?
Ans. No, No transport including official air-crafts, vehicles etc. shall be used for furtherance of the interest of any party or a candidate.

Q. 8. Whether Govt. can make transfers and postings of officials who are related to election work?
Ans. There shall be a total ban on the transfer and posting of all officers/officials directly or indirectly connected with the conduct of the election. If any transfer or posting of an officer is considered necessary, prior approval of the Commission shall be obtained.

Q. 9. Suppose an officer related to election work has been transferred by the Govt. before enforcement of model code of conduct and has not taken over charge at new place. Can such officer take over charge of office at new place after announcement of the code?
Ans. No, Status-quo-ante shall be maintained.

Q. 10. Whether a Minister of Union or State can summon any election related officer of the constituency or the State for any official discussion during the period of elections?
Ans. No Minister, whether of Union or State, can summon any election related officer of the constituency or the State for any official discussions anywhere. If Union Minister is traveling out of Delhi on purely official business, which cannot be avoided in public interest, then a letter certifying to this effect should be sent from the concerned Secretary of the Ministry/Department to the Chief Secretary of the concerned State, with a copy to the Election Commission.

Q. 11. Can an official meet the minister on his private visit to the Constituency where elections are being held?
Ans. No, Any official who meets the Minister on his private visit to the constituency shall be guilty of misconduct under the relevant service rules; and if he happens to be an official mentioned in Section 129 (1) of the Representation of People Act, 1951, he shall also be additionally considered to have violated the statutory provisions of that Section and liable to penal action
provided thereunder.

Q. 12. Whether Ministers are entitled for official vehicle during the election?
Ans. Ministers are entitled to use their official vehicles only for commuting from their official residence to their office for official work provided that such commuting is not combined with any electioneering or any political activity.

Q. 13. Whether Ministers or any other political functionaries can use pilot car with beacon lights affixed with siren?
Ans. Minister or any other political functionary is not allowed during election period, to use pilot car or car with beacon lights of any colour or car affixed with sirens of any kind whether on private or official visit, even if the State administration has granted him a security cover requiring presence of armed guards to accompany him on such visit. This prohibition is applicable whether the vehicle is government owned or private owned.

Q. 14. Suppose there is a visit of President / Vice President at any place in the State. Is a Minister allowed to use VIP Car with other protocol?
Ans. Yes, The Minister may leave with VIP car and other protocol from his headquarters to the place of visit of President/ Vice President and return to his headquarters without attending any other function/meeting with any other political functionary. This restriction shall be applicable from the time he leaves the Headquarters and till he reaches back the headquarters.

Q. 15. Suppose a vehicle has been provided to Minister by the State and the Minister is given an allowance for maintenance of such vehicle. Can it be used by the Minister for election purposes?
Ans. Where a vehicle is provided by the State or the Minister is given an allowance for maintenance of the vehicle, he cannot use such vehicle for election.

Q. 16. Whether facility of official vehicles can be withdrawn from those ministers who violate the provisions of Model Code of conduct?
Ans. Yes, The Chief Electoral Officer shall also recover the cost of propulsion from the ministers who may misuse their official position.

Q. 17. Whether there is any restriction or visits of members of National Commission for Schedule Castes or any other similar National/State Commissions?
Ans. It is advised that all official visits of Members of such Commissions shall be deferred, unless any such visit becomes unavoidable in an emergent situation, till the completion of election exercise to avoid any misunderstanding that may arise in any quarters.

Q. 18. Whether members of Finance Commission of Govt. of India can visit State(s)?
Ans. Yes, Provided neither the press briefings nor press notes would be issued, highlighting the achievements of the State or otherwise.

Q. 19. Whether Chief Minister and other Ministers can attend New Year Day function (of the State), which is a State function?
Ans. No, Only Chief Secretary and other officials may participate and no political person including Chief Minister or Minister may participate in such function where Govt. funds are used.

Q. 20. Whether a Chief Minister/Minister/Speaker can attend a “State Day” function of a State?
Ans. There is no objection provided that he does not make any political speech on the occasion and the function is to be conducted only by Govt. officials. No advertisement depicting the photograph of Chief Minister/Minister/Speaker shall be released.

Q. 21. Whether Governor/Chief Minister/Ministers can participate and address the Convocation function of University or Institute?
Ans. Governor may participate and address the Convocation. Chief Minister or Ministers may be advised not to participate and address the Convocation.

Q. 22. Whether “Iftar Party” or any other similar party can be hosted at the residence of political functionaries, the expenses of which will be borne by State exchequer?
Ans. No, However any individual is free by to host any such party in his personal capacity and at his personal expense.

Q. 23. Is there any restriction on address of Governor in the Assembly Session (budget)?
Ans. No, on welfare schemes, government works etc.

Q. 24. Is there any restriction on issue of advertisement at the cost of public exchequer regarding achievements with a view to furthering the prospects of the party in power?
Ans. Yes, The advertisement regarding achievements of the party at the cost of public exchequer in the print and electronic media and the misuse of official mass media during the period of election is prohibited.

Q. 25. Whether hoardings/advertisements etc. depicting the achievements of the party(s) in power at Centre/State Governments at the cost of public exchequer can be continued?
Ans. No, All such hoardings, advertisements etc. on display shall be removed forthwith by the concerned authorities. Further, no advertisements should be issued in the newspapers and other media including electronic media at the cost of public exchequer.

Q. 26. Whether a Minister or any other authority can sanction grants/ payments out of discretionary funds?
Ans. No, Ministers and other authorities shall not sanction grants/payments out of discretionary funds from the time elections are announced.

Q. 27. Whether money can be withdrawn from treasury against the sanctioned amount from the discretionary funds of Ministers to prepare draft in the names of beneficiaries which may be disbursed after process of election is completed?
Ans. The funds may either be kept in “Personal Ledger Account” of the concerned Department or the release may be deferred till the completion of elections.

Q. 28. Suppose work order has been issued in respect of a scheme or a programme. Can it be started after announcement of election programme?
Ans. Work shall not be started in respect of which work order has been issued before announcement of election but the work has actually not started in the field. If a work has actually started in the field that can be continued.

Q. 29. Whether fresh release of funds under MPs/MLAs/MLCs Local Area Development Fund of any scheme can be made?
Ans. No, Fresh release of funds under MPs/MLAs/MLCs Local Area Development Fund of any scheme shall not be made in any area where election is in progress, till the completion of the election process.

Q. 30. There are various rural development programmes/ schemes of Central government like Indira Awas Yojana, Sampoorna Grameen Rozgar Yojana, Swaranjayanti Gram Swarozgar Yojana, National Food for Work programme, National Rural Employment Guarantee Act. Are there any guidelines for implementation of these schemes/programmes?
Ans. Yes, Following guidelines shall be followed in respect of each scheme/programme as enumerated below:-
(a) Indira Awas Yojana (IAY)
Beneficiaries, who have been sanctioned housing scheme under IAY and have started work, will be assisted as per norms. No new constructions will be taken up or fresh beneficiaries sanctioned assistance till the elections are over.
(b) ) Sampoorna Grameen Rozgar Yojana (SGRY)
Continuing works in progress may be continued and funds earmarked for such works can be released. In case of any Panchayat where all ongoing works have been completed and there is a requirement for taking up new wage employment
works and where funds released directly to the Panchayats from the Ministry of Rural Development are available, new works can be started from approved annual action plan for the current year with the prior consent of the District Election Officer. From other funds, no new works shall be started.
(c ) Swaranjayanti Gram Swarozgar Yojana (SGSY)
Only those help groups which have received part of their subsidy/grant will be provided the balance installments. No fresh individual beneficiaries or SHGs will be given financial assistance till the elections are over.
(d ) National Food for Work Programme(NFWP)
There is no objection for continuance of old works and sanction of new works in those districts where no elections have been announced. In those districts where elections have been announced and are in progress, only those works may be undertaken that have already started physically on ground, provided outstanding advance given for implementation of such works at a given time shall not exceed the amount equivalent to work for 45 days.

(e) National Employment Rural Guarantee Act (NERGA)
The Ministry of Rural Development shall not increase the number of districts in which it is being implemented after announcement of elections. The job card holders will be provided employment in the ongoing work, if they demand work, after announcement of elections. In case no employment can be provided in ongoing works, the competent authority may start new work(s) from the shelf of projects that has been approved and inform the fact to concerned District Election Officer (DEO). No new work shall be started by the competent authority till such time employment can be given in ongoing works. In case no shelf of project is available or all works available on shelf have been exhausted, then the concerned competent authority shall make a reference to the Commission for approval through the concerned DEO. The competent authority shall also furnish a certificate to DEO to the effect that the new work has been sanctioned as no employment can be given to the job card holder in the ongoing work.

Q. 31. Whether a Minister or any other authority can announce any financial grants in any form or promises thereof or lay foundation stones etc. of projects or schemes of any kinds etc.?
Ans. No, Ministers and other authorities shall not announce any financial grants in any form or promises thereof; or (except civil servants) lay foundation stones etc. of projects or schemes of any kind; or make any promise of construction of roads, provision of drinking water facilities etc. or make any ad-hoc appointments in Government, Public Undertakings etc. In such case, senior Govt. Officer may lay foundation stone etc. without involving any political functionary.

Q. 32. A budget provision has been made for a particular scheme or the scheme has been sanctioned earlier. Can such scheme be announced or inaugurated?
Ans. No, Inauguration/announcement of such scheme is prohibited during election period.
Q. 33. Whether ongoing beneficiary scheme can be continued?
Ans. No, The processing of beneficiary oriented scheme, even if ongoing, shall be suspended during election period. Further, no fresh release of funds on welfare schemes and works should be made.

Q. 34. Suppose work order has already been issued for a scheme. Can work be started in respect of such scheme?
Ans. No, work shall be started in respect of which even if work orders have already been issued, if the work has actually not started in the field. Work can start only after the completion of election process. However, if a work has actually started, that can be continued.

Q. 35. Is there any bar to release of payments for completed work?
Ans. There shall be no bar to the release of payments for completed work subject to the full satisfaction of the concerned officials.

Q. 36. How the Govt. may meet the emergency situation or unforeseen calamities, when there are restrictions for announcing welfare measures?
Ans. For tackling emergencies or unforeseen calamities like providing relief to people suffering from drought, floods, pestilences, other natural calamities or welfare measures for the aged, infirm etc., Govt. may do so after obtaining prior approval of the Commission and all ostentatious functions shall be strictly avoided and no impression shall be given or allowed to be created that such welfare measures or relief and rehabilitation works are being undertaken by the Government in office with any ulterior motive.

Q. 37. Whether financial institutions funded, partially or wholly by the Governments can write off loans advanced to any individual, company, firm, etc.?
Ans. No, The financial institutions funded, partially or wholly by the Governments shall not take recourse to writing off loans advanced to any individual, company, firm, etc. Also, financial limits of such institutions, while granting or extending loans, should not be enhanced by issuing of loans indiscriminately to beneficiaries.

Q. 38. Whether tenders, auctions etc. relating to matters such as liquor vends, Tendu leaves and other such cases can be processed?
Ans. No, Processing of such cases should be deferred till the completion of election process in the concerned areas and the Govt. may make interim arrangements where unavoidably necessary.

Q. Suppose contract for Toll Tax is expiring at the end of
financial year (31st March of the year), for which auction date
has already been proposed/advertised. Whether auction
can be held for awarding the contract?
Ans.
39.
Yes
Provided the contract is supervised by the
Commissioner/Divisional Commissioner or some other senior
District Officer directly answerable to the
Commissioner/Divisional Commissioner and there is no change
in the earlier policy or auction procedure.
Q. Whether meeting of Municipal Corporation, Nagar
Panchayat, Town Area Committee, etc. can be convened to
review the revenue collection and preparing draft anuual
budget etc?
Ans.
40.
Yes
Provided that at such meetings only the matters of routine nature
relating to day-to-day administration may be taken up and not the
matters relating to its policies and programmes.
Q. Whether function regarding “Stop TB” programme can be
held which may be inaugurated by a political functionary and
whether an advertisement on “World TB Day” can be
released and published?
Ans.
41.
There is no objection provided –
i. during the inauguration
ceremony, no political
speeches are made,
ii. no advertisement with
photographs of PM and / or
any Minister is issued, and
iii. advertisements and
speeches are confined to
the subject of combating
and eradication of TB only.
- 17 -
Q. Whether political functionaries can participate in the
celebration of “Sadbhavna Diwas” which is celebrated
through out the country?
Ans.
42.
The Central Ministers / Chief Minister / Ministers in the States
and other political functionaries can participate in the celebration
of “Sadbhavna Diwas” subject to condition that the “theme” of
their speeches should be confined only to the promotion of
harmony among the people’ and no political speech should be
made. Messages, if any, issued in the name of Minister should
be confined to the theme of national integration only and should
carry no photograph of the concerned Minister.
Q. Whether State-level functions can be held for observance of
Martyrdom of Martyrs which may be presided/attended to by
Chief Minister / Minister?
Ans.
43.
Yes
Provided that the speeches of the Chief Minister and other
Ministers should restrict to the Martyrdom of the Martyrs and
praising them. No political speech or speech enumerating or
referring to the achievements of the Government or party in
power should be made.
Q. Whether birthday celebration of Shri Babu Jagjivan Ram and
Dr. B.R. Ambedkar which falls on 5th April and 14th April
respectively as a State function may be conducted?
Ans.
44.
Yes
Provided it is not used as an occasion for political campaign or
highlighting public achievements of the Govt. and also there is no
ostentation and no political functionary addresses such meetings.
The above restriction shall be equally applicable in all such other
functions.
Q. Whether Kavi Sammelan, Mushiaras or other cultural
functions can be organized in connection with the
Independence Day/Republic Day celebration and whether
political functionaries can attend the same?
Ans.
45.
Yes
The Central Ministers / Chief Minister / Ministers in the States
and other political functionaries can attend the programme.
However, it will be ensured that no political speeches highlighting
the achievements of the party in power are made on the
occasions.
- 18 -
Q. Whether films can be telecast on the occasions of birth and
death anniversaries / ceremony anniversaries of prominent
leaders in which VVIPs/VIPs may likely to feature?
Ans.
46.
May not be telecast, in case the coverage involves VVIPs/VIPs.
Q. Whether media campaign can be made for effective
implementation of statutory warnings, etc. on sale of
cigarettes and other tobacco products?
Ans.
47.
Yes
Provided that photos/messages of political personalities etc. shall
not be associated with the campaign.
Q. Whether political advertisements can be printed on back
side of the bus-ticket of Govt. owned buses?
Ans.
48.
No
Q. Whether Govt. can release convicted criminals on parole
after following due procedures?
Ans.
49.
If the Govt. feels that the release of any convict on parole is
absolutely essential for certain compelling reasons, in that case
Govt. shall consult the Chief Electoral Officer before granting
parole.
Q. Whether minimum support price of wheat and other
agricultural products can be determined?
Ans.
50.
A reference in the matter shall be made to the Election
Commission.
- 19 -
Q 51. Whether the Government can proceed and act upon the
following indicative illustrative list of items, which is not
exhaustive, without obtaining clearance/approval from the
Election Commission?
(i) Extension of term of an official for
further period except officials related
to conduct of elections,
(ii) Enhancement of minimum penalty in
case of ticket less travel,
(iii) Sanctioning of grants to consumer
co-ordination council from consumer
welfare fund to organize a
conference on world consumer
rights day,
(iv) Issuing advertisement regarding
pulse polio immunization
programme,
(v) Seeking financial assistance from
National Calamity Contingency Fund
for drought relief measure-deputing
of Inter-Ministerial team of officers to
visit concerned State,
(vi) Request of the State Govt. for
transportation of water and fodder
by Rail in areas declared drought
affected,
(vii) Promotion of officials by convening
DPC and filling regular posts falling
due to retirement, deputation, etc.,
(viii) Appointment of persons on
compassionate grounds in
pursuance of Court’s orders,
(ix) Celebration of “May-Day”,
(x) Providing additional charge of office
of one officer to another one,
- 20 -
(xi) To call and finalize tenders of
routine, repair maintenance,
strengthening and upgradation
public utilities being run by the
local authorities,
(xii) Replacement/repair or damaged
water supply distribution pipes,
(xiii) To issue work order of construction
of public facilities and public toilets
on BOT basis in pursuance of
Court’s directions,
(xiv) To conduct the election of college
students union,
(xv) Clearance of unauthorized
structure/land as per orders of
Court,
(xvi) Release of advertisement for
activities relating to control of
HIV/AIDS,
(xvii) Release of advertisement to create
awareness about important
provisions of labour laws,
(xviii) Purchase of uniform clothes and
equipments for Police and awarding
of Tender thereof,
(xix) Commencement of desilting of
drain/cattle ponds
(xx) Grant of financial upgradation
under assured career progression
scheme to employees,
(xxi) Calling of tenders for work to
control mosquitoes
(xxii) Transfer/posting of doctors,
(xxiii) To shift criminals from one jail to
other jail in pursuance of Court’s
orders,
(xxiv) To form Committee for stock of
chemical fertilizer for Kharif and
Rabi crops ,
(xxv) To purchase medicine and
equipments for hospitals for which
grants have already been
sanctioned and tenders for which
were already called for.
(xxvi) Recruitment rally to enroll youth
into the Army,
- 21 -
Ans. Yes
Provided that no impression is given or created that the same
has been done with a view to influencing the electorate in favour
of ruling party. Further, in the case of advertisements, photo of
Minister/political functionary should not be contained therein.
- 22 -
Q. 52. Whether the Government can proceed and act upon the
following indicative illustrative list of items, which is not
exhaustive, without obtaining clearance from the
Commission?
(i) Issuing sanction orders to out of
turn PCO/Telephone connections
and to nominate members to
various Telephone Advisory
Committees which were ordered by
the minister before the elections.
(ii) Issue of appointment order to a
person as a part time non-official
Director on the board of PSU after
Cabinet’s approval.
(iii) Fixing of tariff for Major Port Trusts
by Tariff Authority for major ports.
(iv) Sanctioning of grants From
Consumer Welfare fund to eligible
voluntary consumer organizations
as per guidelines.
(v) Implementation of SEZ rules and
regulations
(vi) Publication of a booklet titled “Year
of Achievement of the Department”
highlighting the salient
achievement of the Department,
(vii) Anganwadi Karyakartri Bima
Yojana, an insurance scheme
under the LIC’s social security
group scheme for anganwadi
workers and helpers,
(viii) Appointment of Central Govt.
nominees to the General Council
as well as Executive Committee of
National Council for Teachers
Education,
(ix) Recruitment drive only for wards of
serving/retired service personnel
as a welfare measures for troops.
(x) Issue of advertisements in
newspapers and video & audio
spots on generic advertisement of
processed food,
(xi) Issue of Notification for setting up
a new Promotion Council for
pharmaceutical sector,
(xii) Appointment of a person as a Sr.
Consultant from a Private
Company as Head of the internal
system group to review the
ongoing projects and Egovernance
initiations with the
f
- 23 -
Ans. No
The processing of aforesaid items may be deferred till the
completion of elections.
Q. Whether State Govt. can seek clarification/
clearance/approval in respect of any proposal directly from
the Election Commission?
Ans.
53.
No
Any proposal from State Govt. for seeking
clarification/clearance/approval from the Election Commission
should only be routed through Chief Electoral Officer, who will
make his recommendation or otherwise in the matter.
ELECTION CAMPAIGN
Q. What are the main guidelines for political parties/candidates
while making election campaign?
Ans.
54.
During the election campaign, no party or candidate shall indulge
in any activity which may aggravate existing differences or create
mutual hatred or cause tension between different castes and
communities, religious or linguistic. Further, criticism of other
political parties, when made, shall be confined to their policies
and programme, past record and work. Parties and candidates
shall refrain from criticism of all aspects of private life, not
connected with the public activities of the leaders or workers of
other parties. Criticism of other parties or their workers based on
unverified allegations or distortion shall be avoided.
Q. Are their any restrictions in using religious places for
election propaganda?
Ans.
55.
Yes
Religious places like Temple, Mosque, Church, Gurudwara or
other places of worship shall not be used as forum for election
propaganda. Further, there shall be no appeal to caste or
communal feelings for securing votes.
Q. Can a candidate go to the office of Returning Officer for
filing a nomination with a procession?
Ans.
56.
No
The maximum number of vehicles that will be allowed to come
within the periphery of 100 mtrs. of Returning Officer’s office has
been restricted to 3 and maximum number of persons that will be
allowed to enter the office of Returning Officer has been limited to
5 (including the candidate).
- 24 -
Q. How many persons are allowed at the time of scrutiny of
nominations by the Returning Officer?
Ans.
57.
The candidate, his election agent, one Proposer and one other
person (who can be an advocate) duly authorized in writing by
the candidate, but no other person, may attend at the time fixed
for scrutiny of nominations by Returning Officer.
(Refer: Sec. 36 (1) of Representation of People Act, 1951)
Q. Are there any guidelines regarding use of vehicles by
ministers/political functionaries/candidates, who have
been provided security cover by the State?
Ans.
58.
Yes
In respect of persons covered by security, the use of State
owned one bullet proof vehicle for the particular person (PP)
will be permitted in all cases where the security agencies,
including the intelligence authorities, have prescribed such use.
The use of multiple cars in the name of stand-by should not be
permitted unless so specifically prescribed by security
authorities. The cost of propulsion of such bullet proof
vehicles where such use of bullet proof vehicles is specified will
be borne by the particular person. The number of vehicles to
accompany the carcade including pilots, escorts etc. will be
strictly in accordance with the instructions laid down by the
security authorities and shall not exceed them under any
circumstances. The cost of propulsion of all such vehicles,
whether owned by Government or hired vehicles, will be met
by the State Government.
The restrictions do not apply to the Prime Minister
whose security requirements are governed by the
Government’s Blue Book.
Q. Whether there is any restriction for plying of vehicles for
electioneering purposes?
Ans.
59.
Candidate can ply any number of vehicles (all
mechanized/motorized vehicles including two- wheelers) for the
purpose of election campaign but he has to seek prior approval
of the Returning Officer for plying such vehicles and must
display permit issued by Returning Officer in original (not
photocopy) prominently on the windscreen of the Vehicle. The
permit must bear the number of the vehicle and name of the
candidate in whose favour it is issued.
- 25 -
Q. Whether a vehicle for which permission has been taken for
election campaign in the name of a candidate, can be used
for election campaign by another candidate?
Ans.
60.
No
Use of such vehicle for election campaign by another candidate
shall invite action under section 171H of Indian Penal Code.
Q. Can a vehicle be used for electioneering purposes without
getting permit from the District Election Officer/Returning
Officer?
Ans.
61.
No
Such vehicle shall be deemed to be unauthorized for
campaigning by the candidate and may attract penal provisions
of Chapter IX A of the Indian Penal Code and shall therefore be
immediately out of the campaigning exercise and shall not be
used for further campaign.
Q. Whether there is any restriction on use of educational
institutions including their grounds (whether Govt. aided,
Private or Govt.) for political campaigns and rallies?
Ans.
62.
Use of educational institutions including their grounds (whether
Govt. aided, Private or Govt.) for political campaigns and rallies
is not allowed.
Q Is external fitting/modification allowed in the vehicles used
for campaigning?
Ans.
63.
External modification of vehicles including fitting of loudspeaker
thereon, would be subject to the provisions of the Motor
Vehicles Act/Rules as well as other Local Act/Rules. Vehicles
with modifications and special campaign vehicles like Video
Rath etc. can be used only after obtaining the requisite
permission from the competent authorities under the Motor
Vehicles Act.
Q. 64. Is there any restriction or use of rest houses, dak bungalows
or other Govt. accommodation for campaign office or for
holding any public meeting for the purpose of election
propaganda?
- 26 -
Ans. Yes
Rest houses, dak bungalows or other Govt. accommodation shall
not be monopolized by the party in power or its candidates and
such accommodation shall be allowed to use by other parties and
candidates but no party or candidate shall be allowed to use as
campaign office.
Further, it shall be ensured that –
(i) no functionary can use the Circuit House, Dak bungalow
to set up campaign office as the Circuit Houses/Dak
bungalows are only for temporary stay (boarding and
lodging) during transit of such functionaries,
(ii) even casual meeting by Members of political parties
inside the premises of the Government owned
guesthouse etc. are not permitted and any violation of
this shall be deemed to be a violation of the Model Code
of Conduct,
(iii) only the vehicle carrying the person allotted
accommodation in the guest house and not more than
two other vehicles, if used by the person, will be
permitted inside the compound of the Guest House,
(iv) rooms should not be made available for more than 48
hours to any single individual, and
(v) 48 hours before the close of poll in any particular area,
there will be freeze on such allocations till completion of
poll or re-poll.
- 27 -
Q. Are there any conditions for getting Govt aircraft/helicopters
(including Public Sector Undertakings) by political
parties/candidates?
Ans.
65.
Yes
While allowing the chartering of Govt. aircrafts/helicopters to
political parties/candidates or private companies etc., the
following conditions should be followed:-
i There should be no discrimination between the ruling party
on the one hand and the other parties and contesting candidates
on the other.
ii The payment will be made by the political parties or the
contesting candidates and proper record maintained.
iii The rates and terms and conditions should be uniform for
all.
iv The actual allotment should be made on the first-come
first-served basis. For this purpose, the date and time of receipt of
the application should be noted down by the authorized receiving
authority.
v In the rare case when both the date and time of two or
more applicants is the same, the allotment will be decided by
draw of lots.
vi No individual, firm, party or candidate will be allowed to
charter the aircraft/helicopter for more than three days at a time.
Q. Is there any restriction on displaying poster, placard,
banner, flag etc of the party concerned or the candidate on a
public property?
Ans.
66.
Candidate may display poster, placard, banner, flag etc of the
party concerned or the candidate on a public property subject to
provisions of local law and prohibitory orders in force. For details,
refer Commission’s instructions No.3/7/2008/JS-II,dated
7.10.2008.
Q. If local law/bye-laws permit wall writings and pasting of
posters, putting up hoardings, banners etc. on private
premises/properties, is it necessary to obtain prior written
permission from the owner of the premises/properties?
Ans.
67.
Yes
Candidate is required to obtain prior written permission from the
owner of the properties/premises and photocopy(ies) of such
permission should be submitted within 3 days to the Returning
Officer or an officer designated by him for the purpose.
- 28 -
Q. Is there any restriction on displaying/carrying poster/
placard/ banner/flag of the party concerned or of the
candidate on the vehicle during the procession?
Ans.
68.
Candidate may display /carry one poster/placard/banner/flag of
Candidate’s party/or his own on vehicle during the procession
subject to conformity with the provisions of Motor Vehicle Act
and any other local laws/bye-laws.
Q. Whether there is any ban on use of plastic sheets for
making use of posters/banners during the election
campaign?
Ans.
69.
The political parties and candidates should try to avoid the use
of plastic/polythene for preparation of posters, banners etc. in
the interest of environmental protection.
Q. Is there any restriction on the printing of pamphlets,
posters etc?
Ans.
70.
Yes
Candidate shall not print or publish, or cause to be printed or
published any election pamphlet or poster which does not bear
on its face names and addresses of the printer and the
publisher thereof.
(Refer : Section 127A of Representation of 1951)
Q. Whether there is any restriction on air dropping of
leaflets/pamphlets by the Political parties/candidates?
Ans.
71.
No
Provided that all the expenses in this regard have been booked
against the election expenses of the candidate, on whose
behalf the leaflets/pamphlets are being dropped.
Q. Is wearing of special accessories like cap, mask, scarf etc.
of a candidate permitted during the campaigning?
Ans.
72.
Yes, provided they are accounted for in the election expenses
of the candidate concerned. However supply and distribution of
main apparels like saree, shirt, etc. by party/candidate is not
permitted as it may amount to bribery of voters.
Q.
Whether dummy ballot units of EVM can be prepared by
the candidate for the purpose of educating the voters?
Ans.
73.
Yes
The dummy ballot units may be made of wooden, plastic or ply
board boxes, half the size of the official ballot units and may be
painted brown, yellow or grey.
- 29 -
Q. Whether there is restriction to display to the public any
election matter by means of cinematograph, television or
other similar apparatus?
Ans.
74.
Yes
Candidate can not display to the public any election matter by
means of cinematograph, television or other similar apparatus
during the period of 48 hours ending with the hour fixed for the
conclusion of poll.
(Refer: Sec. 126 of Representation of People Act, 1951)
Q. Whether a candidate can print and distribute the
diary/calendar/sticker depicting his image or image of
Gods/ deities etc.
Ans.
75.
No
This will amount to bribery under section 171E of Indian Penal
Code.
Q. Whether distribution of printed “Stepney Covers” or other
similar material containing symbol of party/candidate or
without depicting it, is a violation?
Ans.
76.
Yes
In case, it is established that such material have been
distributed, a complaint may be filed before the area Magistrate
by District Administration against the distribution of the said
material under section 171 B of the IPC.
Q. Are there conditions/guidelines for setting up and operating
of Temporary Offices by Party or candidate?
Ans.
77.
Yes
Such offices can not be opened by way of any encroachment
either on public or private property/ in any religious places or
campus of such religious places/ contiguous to any educational
institution / hospital / within 200 meters of an existing polling
station. Further, such offices can display only one party flag and
banner with party symbol/photographs and the size of the banner
used in such offices should not exceed ‘4 feet X 8 feet’ subject to
the further condition that if the local laws prescribe a lower size
for banner / hoarding etc., then the lower size prescribed by local
law shall prevail.
- 30 -
Q. Is there any restriction on the presence of political
functionaries in a constituency after campaign period is
over?
Ans.
78.
Yes
After the closure of campaign period (starting from 48 Hrs. before
closure of poll), political functionaries etc. who have come from
outside the constituency and who are not voters of the
constituency should not continue to remain present in the
constituency. Such functionaries should leave the constituency
immediately after campaign period is over. This will not apply in
the case of candidate or his election agent even if they are not
voters in the constituency.
Q. Is such restriction applicable in the case of office bearer of a
political party who is in-charge of election in the State?
Ans.
79.
Yes
However, such restriction is not insisted upon during the general
elections to Lok Sabha/State Assembly only in respect of the
office bearer who is in-charge of the State during the election
period. Such office bearer shall declare his place of stay in the
State Headquarters and his movement during the period in
question shall remain confined normally between his party office
and place of his stay. The above restrictions will be
applicable to all other functionaries in all elections.
Q. Whether there is any restriction for holding public meeting
or taking out processions?
Ans.
80.
Yes.
Prior written permission should be obtained from the concerned
police authorities for holding of a meeting at any public or private
place and for taking out processions.
Q. Whether loudspeakers can be used for public meetings or
for processions or for general propaganda without obtaining
permission from Police authorities?
Ans.
81.
No.
Prior written permission should be obtained from the concerned
police authorities for using loudspeakers.
- 31 -
Q. Whether there is any time limit for using loudspeakers?
Ans.
82.
Yes.
Loudspeaker can not be used at night between 10.00 P.M. and
6.00 A.M.
Q. What is the deadline after which no public meetings and
processions can be taken out?
Ans. Public meetings cannot be held after 10 PM and before 6.00 AM.
Further, Candidate can not hold public meetings and processions
during the period of 48 hours ending with the hour fixed for the
conclusion of poll. Suppose, poll day is 15th July and hours of
poll are from 8.00A.M to 5.00 P.M., then the public meetings and
processions shall be closed at 5.00 P.M on the 13th July.
(Refer: Sec. 126 of Representation of People Act, 1951)
83.
Q. Whether there are any guidelines for political
parties/candidates for issue of unofficial identity slips to
voters?
Ans.
84.
Yes.
The unofficial identity slip, on white paper, shall contain only the
particulars of the voter i.e. name, Serial number of voter, part No.
in the electoral roll, s.no. and name of Polling Station and date of
Poll. It should not contain the name of candidate, his photograph
and symbol.
Q. Is there any restriction on appointment of a
Minister/M.P./M.L.A/M.L.C or any other person who is under
security cover as an Election Agent/Polling Agent/Counting
Agent?
Ans.
85.
Yes
A candidate cannot appoint a Minister/M.P./ MLA/MLC or any
other person who is under security cover, as an election/polling
agent/counting agent, as his personal security shall be
jeopardized with such appointment, because his security
personnel will not under any circumstances be permitted to
accompany him into the 100 meter perimeter of polling stations
described as the “Polling Station Neighborhood” and within the
polling booth and campus of counting centre and within the
counting centre. Also any person having security cover will not be
allowed to surrender his security cover to act as such agent of a
candidate.
- 32 -
Q. Is a candidate allowed to appoint persons as polling
agents from anywhere?
Ans.
86.
No
Such person who is appointed by the candidate as a polling
agent must be an ordinarily resident and elector of the
concerned polling station area only and not from outside the
concered polling area. Such person must also have Elector’s
Photo Identity Card.
However, in the case of polling stations exclusively manned by
the women polling personnel, the restriction of resident of same
polling area shall not be applied for.
Q. Who is the authority to issue permits to Star Campaigners
(Leaders) of the Political Parties who avail benefit under
Section 77(1) of R.P Act, 1951?
Ans.
87.
In case the mode of road transport is to be availed of by Star
Campaigners (Leaders) of political, the permit will be issued
centrally by the Chief Electoral Officer. If such party applies for
issue of permit for the same vehicle to be used by any leader
for election campaigning throughout the State, the same may
be issued for such vehicle centrally by the Chief Electoral
Officer, which will be prominently displayed on windscreen of
such vehicle(s) to be used by concerned leader(s). If different
vehicles are to be used by such party leaders in different
areas, then the permit can be issued against the name of the
person concerned who will display it prominently on the
windscreen of the vehicle being used by such leader.
Q. Whether Opinion poll or Exit poll can be conducted,
published, publicized or disseminated at any time?
Ans.
88.
No
The result of any opinion poll or exit poll conducted shall not be
published, publicized or disseminated in any manner by print,
electronic or any other media, at any time-
(a) during the period of 48 hours ending with the hour fixed for
closing of poll in an election held in a single phase; and
(b) in a multi-phased election, and in the case of elections in
difference States announced simultaneously, at any time during
the period starting from 48 hours before the hour fixed for closing
of poll in the first phase of the election and till the poll is
concluded in all the phases in all States.
- 33 -
Q. Whether there is any restriction for transmitting Short
Messages Service (SMSs)?
Ans.
89.
Yes
Transmitting objectionable messages on SMSs during election is
prohibited. For objectionable SMSs which may violate the law
and ECI instructions issued in this behalf, the police authorities
shall advertise special mobile numbers on which the receiver of
such SMS can forward the said SMS with the mobile number of
sender. The police authorities shall take action under the law.
POLL DAY
Q. Are there any guidelines for setting up of election booth by
candidate/political parties near polling station on the day of
poll?
Ans.
90.
Election booth can be set up beyond a distance of 200 meters
from the polling stations, only with 1 table and 2 chairs with an
umbrella or a piece of tarpaulin or cloth to protect the two
occupants. Only one banner (3 x 41/2 feet) can be displayed
showing the name of the candidate/ party / election symbol at the
booth. However, two election booths can be set up, if more than
two polling stations have been set up in a building
Q. Is it necessary to obtain written permission of the concerned
Government authorities or local authorities for setting up of
election booth?
Ans.
91.
Yes
It is necessary to obtain the written permission of the
Government authorities concerned or local authorities before
setting up of such booths. Written permission must be available
with the persons manning the booth for production before the
police /election authorities concerned on demand.
Q. Is there any restriction of canvassing in or near polling
station?
Ans.
92.
Yes
Canvassing for votes etc. within a distance of one hundred
meters of polling station is prohibited on the day of poll.
(Refer : Section 130 of Representation of 1951)
- 34 -
Q. Whether the use of mobile phone is allowed in the polling
station?
Ans.
93.
No person is allowed to either carry or use mobile phones,
cordless phones, wireless sets etc. in 100 meter perimeter of the
polling stations described as the “polling station neighborhood”
and within the polling booth.
Only Observer/Micro Observer, Presiding Officer and security
personnel are allowed to carry mobile phone but they will keep
their mobile phones in silent mode.
Q. Is there any restriction of going armed to or near polling
station?
Ans.
94.
Yes
No person is allowed to go armed with arms as defined in Arms
Act 1959 of any kind within the neighborhood of a polling station
on the day of poll.
(Refer: Section 134B of Representation of 1951)
Q. How many vehicles a candidate is entitled for on the day of
poll?
Ans.
95.
(i) For an election to the House of the
People, a candidate will be entitled to:
(a) One vehicle for candidate’s own use
in respect of the entire constituency.
One vehicle for use of candidate’s
election agent for entire constituency.
(b) In addition, one vehicle for use of
candidate’s workers or party workers,
as the case may be, in each of the
assembly segments comprised in the
Parliamentary Constituency.
(ii) For an election to the State Legislaitve Assembly, a
candidate will be entitled to:
(a) One vehicle for candidate’s own use
(b) One vehicle for use of candidate’s election agent
(c) In addition, one vehicle for use of candidate’s workers or
party workers.
Q. If the candidate is absent from the constituency on the day
of poll, can the vehicle allotted in his name be used by any
other person?
96.
No
Vehicle allotted for candidate’s use is not allowed to be used by
any other person.
- 35 -
Q. Can any type of entitled vehicle be used on the day of poll?
Ans.
97.
No
The candidate or his agent or party workers or workers will be
allowed to use only four/three/two wheeler vehicles i.e. cars (of
all types), taxis, auto rickshaws, rickshaws and two wheelers. In
these vehicles not more than five persons including drivers are
allowed to move on the day of poll.
Q. Whether Political Party/Candidate can make arrangements for transporting voter to and from Polling Station?
Ans.
98.
No.
Any arrangement, direct or indirect, to carry any voter to or from
polling station by any kind of vehicle used for transport is a
criminal offence.
(Refer: Sec. 133 of Representation of People Act, 1951)

Q. 99. Whether there are restrictions on plying of Govt./private vehicles on the poll day?
Ans. No, Public transport like buses, minibuses are allowed to ply but it should be ensured that they are not used clandestinely for the conveyance of voters. Further, private cars, taxies carrying passengers to places other than polling booths like hospitals, airports, railway stations, bus stands, friends and relations houses, clubs, and restaurants will be allowed on the road. But they should not be allowed to come clandestinely near the polling areas for the conveyance of voters.

Q. 100. Can a leader of Political party use private fixed-wing aircraft and helicopters for the purposes of supervising and monitoring the polling and counting process on the day of poll and counting?
Ans. No, Leader of a political party is not allowed to use private fixed-wing aircraft and helicopters for the purposes of supervising and monitoring the polling and counting process on the day of poll and counting.

Trademark Law – Its Past and Present

This paper has been prepared by
By S. K. Inthu, Advocate, Chennai

1. Introduction
1.1. Trademark has a substantial role in the competitive market and has a remarkable intellectual value which needs to be protected. The recognition and protection of intellectual property rights is considered to be of recent origin. But the instances given in this Article would trace its Origin right from the period of the Ancient Classical Greek and The Imperial Rome. During the course of time, the nations all over the world have recognized the importance of intellectual property rights due to its immense economic values and have enacted laws towards protecting them. The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), is a milestone in the history of the Trade Mark Law as it has influenced the law on trade mark in almost all nations of the world including India. It is a significant international instrument, zealously aiming to protect Intellectual Property Rights across the globe to reward one’s creativity and inventiveness. The member nations to this Agreement have enacted laws in tune with the provisions of the Agreement on TRIPS. India already has sufficient enactments on this area.

1.2. A trademark is a distinctive sign or indicator of some kind which is used by an individual, business organization or other legal entity to uniquely identify the source of its products and/or services to consumers, and to distinguish its products or services from those of other entities. It typically comprises a name, word, phrase, logo, symbol, design, image, or a combination of these elements. The meaning and scope of the term Trade Mark has been explained in the case of Firm Koonerji Bechari Lal vs. Firm Adam Hazi Pir Mohammed as follows:
“a Trade Mark is some symbol consisting in general of a picture label word or words which is applied or attached to goods of a trader so as to
distinguish them as his from similar goods of other traders and to identify them as his goods or as those of his successors in the business which they are produced or put forward for sale.”
It is also used informally to refer to any distinguishing attribute by which an individual is readily identified, such as the well known characteristics of celebrities. When a trademark is used in relation to services rather than products, it may sometimes be called a service mark, particularly in the United States.
1.3. To put it simply, Trade Mark is a property right and law protects that right. The owner of a registered trademark may commence legal proceedings for trademark infringement to prevent unauthorized use of that trademark. However, registration is not required. The owner of a common law trademark may also file suit, but an unregistered mark may be protectable only within the geographical area within which it has been used or in geographical areas into which it may be reasonably expected to expand.
2. Why Trade Mark?
2.1. The use of a trademark indicates that the maker or dealer believes that the quality of the goods will enhance his or her standing or goodwill, and a known trademark indicates to a buyer the reputation that is staked on the goods. Registration of a trademark is necessary in some countries to give exclusive right to it. In the United States, Canada, and Great Britain, the sufficient use of a trademark not previously used establishes exclusive right to it, but registration is provided as an aid in defending that right. People rely on trademarks to make informed decisions about the products they buy. A trademark acts as a guarantee of the quality and origin of a particular good. A competing manufacturer may not use another company's trademark. The owner of a trademark may challenge any use of the mark that infringes upon the owner's rights.
3. How to indicate the presence of Trade mark?
3.1. The presence of trademark protection for the name or logo of a company or product is often indicated by the small symbol of an R in a circle placed near the trademark. The R means that the mark is a registered trademark and is a warning that the law prevents unauthorized use of it. A party may indicate that it is claiming rights to a particular mark by displaying a TM rather than an R symbol. Marks bearing the TM symbol are not registered, but the presence of the symbol shows the intent to register.
4. History and Development of Trademark Law
4.1. According to U.S. History Encyclopedia Merchants and artisans have used trademarks for centuries; the medieval trademark not only allowed artisans to take credit for their work but also permitted guilds to control quality. English common law (the law of court- decisions rather than statutes) protected trademarks beginning in the seventeenth century.
4.2. The trade of goods came into practice long ago, and the use of trademarks is thought to have evolved from that. The origin of trademarks can be traced back as far as the beginning of the circulation of goods. The history of marks is nearly as old as the histories of mankind and religion. Scientists have come across excavated artifacts from places such as ancient Egypt with various symbols carved thereon for religious and superstitious reasons. "Potters marks" appeared in relics left from the Greek and Roman periods and were used to identify the maker (potter) of a particular vessel. Among those who specialize in researching the cultural heritage of marks, the studies surrounding "potters marks" are famous. It would be difficult, however, to say that these marks are trademarks in the sense of the modern meaning.
4.3. Over time, different methods of identification and distinction developed. Loved ones and pets were given names. "Proprietary marks" (in the form of a name or symbol) were affixed to goods to enable one person to distinguish their own possessions from those of others. Craftsmen applied their names, unique drawings, or simple inscriptions to identify goods they created. Even though these marks surely helped in distinguishing goods, it is difficult to say that these marks were trademarks with distinctiveness in the modern sense of the word.
4.4. Symbols on goods used in ancient Rome and other countries near the Mediterranean Sea had similar characteristics to the trademarks of today. Because this ancient region is considered to be the first to actively circulate goods, it is widely thought that trademarks evolved in response to the emergence of a society in which goods circulate in commerce. However, even in those days, a trademark system based on property rights did not yet exist.
4.5. Around the 10th century, a mark called a "merchants mark" appeared, and symbols among traders and merchants increased significantly. These marks, which can be considered one kind of "proprietary mark," essentially were used to prove ownership rights of goods whose owners were missing due to shipwrecks, pirates, and other disasters. Even now, in every part of the world, horses, sheep, and other animals are still branded with a mark identifying the owner. In Japan, a symbol is affixed to lumber that is tied onto a raft and sent down a river to its mouth. These types of marks are reminiscent of the "merchant's mark" of the past.
4.6. In guilds of the middle ages, craftsmen and merchants affixed marks to goods in order to distinguish their work from the makers of low quality goods and to maintain trust in the guilds. These marks, known as "production marks," served to punish the manufacturers of low quality goods for not meeting the guild's standards and to maintain monopolies by the guild's members.
4.7. These production marks helped consumers to identify and assign responsibility for inferior products, such as, goods short in weight, goods comprised of poor quality materials, and goods made with inferior craftsmanship. Because these marks were affixed out of compulsion or obligation, rather than one's own self-interest, they also became known as "police marks" or "responsibility marks".
4.8. They acted not only to distinguish between sources of goods, but to serve as an indicator of quality as well. While modern marks work to ensure the quality and superiority of certain goods, the obligatory marks served to uncover defective goods. "Responsibility marks" were more burdensome than real property, and could not be changed easily once the mark had been adopted.
4.9 Furthermore, it is thought that this type of mark did no more than simply guarantee minimum quality. Finally, these symbols were different from modern marks in that they emerged to benefit the guilds, and were not for the benefit of the production mark owner.
4.10 From the Middle Ages, through "police marks" and "responsibility marks," modern trademarks slowly developed as the Industrial Revolution sparked the advent of what is now modern-day capitalism. Gradually, the guild systems disintegrated, and free business was established. Marks began to actively identify the source of goods rather than obligatory guild membership. About this time, special criminal laws protecting trademarks were also developed out of early forgery, counterfeiting, and fraud laws. Civil protection was gradually and systematically established against those who would use another's mark without permission ("infringers"). Imitations of a trademark wrong both the owner of the trademark and the buyer, who is misled as to the source of goods, and such infringements of a trademark are punishable by law. Service marks, which are used on services (such as insurance or brokerages) rather than on products, are also covered by trademark laws’.
4.11. 701 A.D. In Japan Taihouritsurei set forth laws on indications. Indications were a system designed to regulate and prohibit the mass production of articles of inferior quality. Thus, the character of an indication was far from that of a modern-day trademark. Literature tells us that the fraudulent use of trademarks has existed since olden times. It is documented that there was a punishment for trademark infringement in the Muromachi period and also that there were regulations on trademarks within the trade associations Za and Kabunakama.
4.12. 1772, in USA George Washington, sought to protect the mark "G. Washington" for use on flour. The purpose of trademark law was to prevent consumer deception as to source. This meant that trademarks were local and goods-specific, as was most trade at the time. A trademark of "Washington's" for flour in Virginia would not extend to "Washington's" on silverware or to "Washington's," even on flour, outside Virginia’.
4.13. 1803, In France, the "Factory, Manufacture and Workplace Act" (Article 16) is internationally noted for establishing a system which made it a crime to pass off another's seal as one's own. Further, the Criminal Acts of 1810 (Article 142) and 1824 (Article 433) made it a punishable crime to abuse the name of others or wrongly use the names of production areas. Even this system was not nearly as advanced as the comprehensive trademark legal structure as we see today.
4.14. 1874, In Germany The Trademark Protection Law (Gesetz der Markenschutz), is considered to be the first German trademark law. It put into place a non- substantive trademark registration and examination system. A later statute, the Trademark Protection Law (Gesetz zum Schutz der Warenbezeichungen) of May 12,1894, followed principles of an examination-based system that was substantively based Germany's 1936 amendment put the law in the form of the modern trademark law (Warenzeichengesetz);
4.15. 1862, In England "The Merchandise Marks Act," focused on provisions dealing with deceptive indications, The " ‘Trade Mark’ Registration Act" was also passed in 1875. The 1905 Act was amended in 1919 and 1937, until a new Act was passed in 1938. This Act fundamentally changed the system in many ways, permitting registration based on intent-to-use, creating an examination-based process, and creating an application publication system. It equipped the English system with advances that surpassed the trademark law of France at that time.
5. Definitions of Trade Mark from dictionaries:
5.1. The Computer Encyclopedia - A trademark is a brand identification for a product or service, the latter technically called a "service mark." The mark can be written text, text in a particular stylized form or a graphic symbol.
5.2. The Investment Dictionary - ‘A symbol, word, phrase, logo, or combination of these that legally distinguishes one company's product from any others. Any infringement on a trademark is illegal and therefore grounds for the company owning the trademark to sue the infringing party’.
5.3. The Financial & Investment Dictionary - ‘Distinctive name, symbol, motto, or emblem that identifies a product, service, or firm. In the United States, trademark rights is the right to prevent competitors from using similar marks in selling or advertising - arise out of use; that is, registration is not essential to establish the legal existence of a mark …’.
5.4. The Marketing Dictionary defines Trade Mark as, ‘Identification mark, as defined by the Lanham Trade-Mark Act of 1946 of United States. "names, symbols, titles, designations, slogans, character names, and distinctive features emphasized in advertising . . . " used by manufacturers, advertisers, and merchants to identify products and to distinguish them from competitive products.
5.5. The Business Dictionary - ‘Insignia or logo that distinguishes one maker's goods from all others; any mark, word, letter, number, design, picture, or combination thereof in any form that is adopted and used by a person to denominate goods that he makes, is affixed to the goods, and is neither a common nor generic name for the goods nor a picture of them, nor is merely descriptive of the goods… ’
5.6. Britannica Concise Encyclopedia defines Trade Mark as, ‘Mark used by a manufacturer or merchant to identify the origin or ownership of goods and to distinguish them from others. Trademarks may be words or groups of words, letters, numerals, devices, names, the shape or other presentation of products or their packages, or combinations of colours.
5.7. US History Encyclopedia - ‘Trademarks are words or symbols used on goods to indicate source.
5.8. Columbia Encyclopedia defines Trade Mark as, ‘trademark, distinctive mark placed on or attached to goods by a manufacturer or dealer to identify them as made or sold by that particular firm or person.
5.9. Law Encyclopedia defines Trade Mark as, ‘Distinctive symbols of authenticity through which the products of particular manufacturers or the salable commodities of particular merchants can be distinguished from those of others’.

6. The International Nature of Trademark Law
6.1. Even though trademarks are regulated by each country independently, because of the fact that goods travel beyond country borderlines and bear trademarks, trademark law has international implications. The Paris Convention is the prime International Convention in the field of Intellectual Property Rights.
7. Paris Convention (relating to the protection of industrial property), also known as Industrial Property Rights Protection Alliance Treaty
7.1. This Convention was concluded in the year 1883 and its interpretation was supplemented in Madrid. It further underwent several amendments. In 1900-Brussels; 1911- Washington, D.C.; 1925 - The Hague; 1934-London; 1958 - Lisbon and 1967 - Stockholm. It was revised in 1979 to the form as we know it today. There are 151 member states as of January 15, 1999, demonstrating that most major countries in the world have joined the treaty. However, because the Paris Convention requires a super majority, it has a tendency to lag behind current developments.
7.2. The following is a list of the major relevant articles of the treaty:
7.2.1. member states protect the trademark rights and other industrial property rights of other member states ;
7.2.2. each member state must maintain the fundamental principle that citizens of other member states receive the same protection as its own citizens; and
7.2.3. member states must recognize the assertion of priority rights.
7.3. The articles that are particularly relevant to the trademark law include:
7.3.1. remedies for cases in which registered trademarks are not used, including sanctions
7.3.2. the independent status of the trademark law ;
7.3.3. protection of well-known trademarks;
7.3.4. adjustment regulations on the transfer of trademark rights;
7.3.5. regulations on trademarks registered in a foreign country;
7.3.6. protection of service marks;
7.3.7. regulations controlling applications for trademark registration made by an agent, among others, without permission of the applicant;
7.3.8. removal of trademark registration limitations based on the disposition of the goods;
7.3.9. protection of collective trademarks;
7.3.10. control of the importation of counterfeit goods;
7.3.11. control of fraudulent indications of country origin;
7.3.12. prohibition of acts of unfair competition;
7.3.13. legal measures to prevent counterfeit goods and others; and
7.3.14. temporary protection of goods exhibited in international expos.
7.4 The Trademark Registration Treaty or "TRT," concluded in the year 1973 under the auspice of the World Intellectual Property Organization (WIPO) [established by the WIPO Convention in 1967] is more up-to-date. This Treaty became effective in February 1980. The Trademark Law Treaty ("TLT") of 1994, however, is even more current
8. Special Agreements
8.1. The major special agreements reached include:
8.1.a. The Madrid Agreement for the prevention of false or misleading indications of country origin.
8.1.b. The Madrid Agreement on international registration of production marks or trademarks.
8.1.c. An Agreement on international classification of goods and services for trademark registration.
8.1.d. The Lisbon Agreement on the protection of the name of the country of production and its international registration.
8.1.e. Trademark Registration Treaty ("TRT").
8.1.f. The Trademark Law Treaty (also called the Trademark Law Harmonization Treaty) of 1994, effective from August 1, 1996.
8.2. The International Application under the TRT becomes effective internationally and domestically as of the application date at the International Bureau, and is treated as a domestic application in any designated member state. The International Bureau issues an International Registration and publishes the mark based only on an examination of formality, and informs each designated state. Subsequently, the designated states conducts substantive examination.
8.3. The international registration becomes effective 15 months after its public announcement, unless the national government office of a designated country issues a notice of refusal of registration to the International Bureau within the 15 months from the date of publication. The registration date of the domestic trademark becomes the international application filing date.
8.5. The Trademark Law Treaty (TLT) applies the regulations of the Paris Convention to the non-member states of the Convention. Article 15 of the TLT states that its member states must observe the regulations concerning marks in the Paris Convention, thus making it a duty for its member states. The amendment added phrases such as "member states of the TLT" into the regulations in the trademark law as well as in the Unfair Competition Prevention Law.
9. Agreements among Multiple States
9.1 In addition to the International Treaties and Agreements discussed previously, there are other accords reached between two or more countries. An example is the Pan-American Treaty of 1929. Also, the European Economic Community (EEC) contemplated a unified trademark law for many years. The European Trademark Law became effective on March 15, 1994, and a European Trademark Office was established in Alicante, Spain.
9.2. Other regional trademark agreements include the Benelux Unified Trademark Law, which was signed in 1962 and went into force on January 1, 1972. This law is applied equally in Belgium, The Netherlands and Luxembourg. There is a proposal, as set forth in the Model Trademark Law of 1956, created by an attorney, Dr. Stefan P. Ladas, for a unified global trademark law, although this is only a vision for the distant future. It was drafted in the International Chamber of Commerce and remains a proposal.
10.1. Comparison of trademark treaties among multiple countries
10.2. There is a close relationship between international treaties and the Japanese Trademark Law, more so than in other areas of law, other than industrial property right laws. However, the relationship is not close enough to call it a unified trademark treaty, in which other countries would apply Japan's trademark laws.
10.3. In the European Trademark Law, the actual body of law in each geographic area is formed by the actual international law as to trademarks registered there under. Under the European Trademark Law, the rights acquired by the trademark registration of the international treaty coexist with the domestic trademark rights, which were previously obtained under the member-state law. Therefore, the treaty is not a completely unified trademark law.
10.4. On the other hand, the Trademark Registration Treaty (TRT) does not grant an independent trademark right. The TRT eases the trademark registration process and is a treaty that the member states merely join for cooperation. The attained trademark right is still under the auspices of each member state and is independent from the trademark rights of other member states. Internationally, trademark registration is facilitated by the World Intellectual Property Organization, under the Madrid Protocol.
11. Types of protected mark
11.1. Trademark law protects marks. Marks can be words, names, symbols or devices. They come in several classes .
11.1.1. Trademark Strictly speaking, is a mark that distinguishes one person's goods from others'. In practice, the word "trademark" is often used to refer to any class of mark that is protected under trademark law
11.1.2. Service mark is similar to a trademark, except that it is used to distinguish one person's services from others'. Service marks can be registered in the same manner as trademarks and are denoted by the ® symbol once they are registered on the Principal or Supplemental Registers. If they are not registered, they often carry a TM symbol if it is a Trade Mark and SM symbol if it is a service mark.
11.1.3. Trade name is a mark used to identify a business, as opposed to a good or service. The Lanham Act does not allow trade names to be registered unless they also function as trademarks or service marks by identifying the source of a good or service. However, many states allow trade names to be registered and protected under state law.
11.1.4. Certification mark is a mark used to certify a good in some way, regardless of its specific source. Seals of approval (e.g. the Good Housekeeping Seal of Approval) and marks of origin (e.g. Roquefort cheese) are examples of certification marks. A certification mark is held by an organization and is protected under trademark law so long as the holder establishes a standard for awarding the mark and polices that standard effectively.
11.1.5. Collective mark is a mark held by a group for the use of its members. Examples include union stamps and franchise marks. Collective marks are treated like regular trademarks and service marks under the Lanham Act.
11.1.6. Trade dress refers to the distinctive packaging of a product. One example of trade dress is the decor of a restaurant chain. Trade dress is protected if it is inherently distinctive.
11.1.7. Product configuration refers to the distinctive design and shape of a product. The best-known example is the glass Coca-Cola bottle. A product configuration must have secondary meaning to be protected, regardless of whether it is inherently distinctive or not. Secondary meaning means that the appearance of the product should indicate its source to a consumer
(Both trade dress and product configuration can be registered as trademarks, but they are more often protected without registration as a "false designation of origin". They pose special problems in trademark law because of their non-verbal nature. Words are easy to protect: more abstract designs are not.)
12. Eligibility for Registration.
12.1. A trademark may be eligible for registration, or registrable, if amongst other things it performs the essential trademark function, and has distinctive character. Registrability can be understood as a continuum, with "inherently distinctive" marks at one end, "generic" and "descriptive" marks with no distinctive character at the other end, and "suggestive" and "arbitrary" marks lying between these two points. A mark must satisfy both sections to become registered.
13. The spectrum of distinctiveness
13.1. In trademark litigation, courts are most frequently asked to parse between suggestive and descriptive marks on the one hand, and between descriptive and generic marks on the other. This is because suggestive marks, like fanciful and arbitrary marks, are presumed to be entitled to trademark protection, while descriptive marks are entitled to protection if they have become known as representing the producer of the goods, and generic marks can never receive protection.
13.2. Fanciful mark has no meaning other than its meaning as a trademark. Examples include Xerox copiers, Lego bricks and Verizon phones.
13.3. Arbitrary marks have a separate meaning, but that meaning has nothing to do with their use as a trademark. Examples include Apple computers, Diesel jeans and Ivory soap.
13.4. Suggestive marks suggest a characteristic of a good or service without actually describing that characteristic. Examples include Coppertone sunblock, Earthlink internet service and jetblue airline service.
13.4. Arbitrary, fanciful and suggestive marks receive highly similar treatment under the law. They are the strongest types of mark in that their holders do not need to prove a secondary meaning in order to protect the mark. Because there is no reason to associate Apple with computers, outside of the popularity of computers made by Apple Computer, third parties have few legitimate reasons to use the name "Apple" on their computers.
13.5. Descriptive marks. A "descriptive" mark is one that identifies a characteristic of the article or service it marks. Examples include American Airlines (a geographic mark) and Dell Computer (a surname mark). Descriptive marks cannot be registered without proof that the mark has a secondary meaning in the eye of the consumer public.
13.6. Even if a descriptive mark has a secondary meaning, its descriptive nature makes it possible to avoid trademark infringement liability through a fair use defense. A person could, for instance, use "American Airlines" in a commercial context to refer to airlines from America, so long as they were not using the term in its trademark sense.
13.7. Generic marks like "laptop computer," cannot receive trademark protection even if they have a secondary meaning. The rule against generic trademarks is particularly important for holders of famous marks, because their marks may lose protection if they become common nouns or adjectives in the public eye. Formerly-trademarked words like "aspirin" and "cellophane" have lost their protection due to genericide.
13.8. Non-verbal marks A mark need not be a word or phrase. Besides trade dress and product configuration, discussed above, trademarks can also be found in sounds (e.g. the NBC chimes), colors, fragrances, and other distinctive features of a product. The most important criteria in determining their trademarkability is secondary meaning (whether the feature denotes origin to consumers) and whether the feature is functional. Functional features are not trademarkable: they must be protected under patent law if they are to be protected.
14. Priority Right
14.1. Generally speaking, the owner of a mark is the person who is first to use that mark in commerce. This is known as the race to the marketplace test. In the case of unregistered marks, protection only extends to the areas where marked products are sold or advertised, where their reputation is established, or where the owner is reasonably expected to reach in the normal expansion of their business. Registered marks automatically receive nationwide protection regardless of where they are used.
14.2. If two people use the same mark in the same region, the right to use the mark will be given to the first person to use the mark in that region. If one of the marks is registered, the unregistered mark will only prevail if it was in use before the application for the registered mark was filed, and the unregistered mark will only prevail in the area(s) where it was in use.
14.3. Technically speaking a Priority Right or Right of Priority is a time-limited Right, triggered by the first filing of an application for a patent, an industrial design or a trademark respectively. The priority right belongs to the applicant or his successor in title and allows him to file a subsequent application in another country for the same invention, design or trademark and benefit, for this subsequent application, from the date of filing of the first application for the examination of certain requirements. When filing the subsequent application, the applicant must "claim the priority" of the first application in order to make use of the Right of Priority.
14.4. The Period of Priority, i.e. the period during which the priority right exists, is usually 6 months for industrial designs and trademarks and 12 months for patents and utility models. The period of priority is often referred to as the "priority year" for patents and utility models.
15. Infringement
15.1. Infringement of a Trademark is a violation of the Exclusive Rights attached to it without the authorization of its owner or any licensees (provided that such authorization was within the scope of the license). Infringement may occur when one party, the "infringer", uses a trademark which is identical or confusingly similar to a trademark owned by another party, in relation to products or services which are identical or similar to the products or services which the registration covers. An owner of a trademark may commence legal proceedings against a party which infringes its registration.
16. Confusion
16.1. Confusing similarity is a test used during the examination process to determine whether a trademark conflicts with another, earlier mark, and also in trademark infringement proceedings to determine whether the use of a mark infringes a registered trade mark. In many jurisdictions this test has been superseded by the concepts of similarity and likelihood of confusion, due to the harmonizing effects of the Agreement on Trade-Related Aspects of Intellectual Property Rights.
16.2. Where mark X is not identical to a registered trademark, the use of mark X may still amount to an infringement if it is "confusingly similar" to the registered trademark. Mark X may share elements of spelling or style that would lead a reasonable observer to believe the trademarks were related. For example, in the computer industry, Microsoft has become such a well known trade name and trade mark that other businesses in the industry may want to use the term "micro" or "soft" in their names. As Microsoft generally does not hold exclusive rights in these terms, it would need to establish that any trade names or trademarks which include these terms is confusingly similar to "Microsoft". The reputation attaching to a trademark is also significant, such that "Microsafe" or "Micro Software", although clearly not identical, could potentially be confusingly similar and amount to an infringement.
16.3. In addition, the style of a trade mark, such as a logo or font, can become relevant. For example, Microsoft products are distinguished in the marketplace by a consistent font. Competitors may not use the same font on their product, particularly when using a name which would not be confusingly similar except for the use of the font. For example, a brand called "Microsystems" would most likely not be confused with Microsoft. However if Microsystems used the same font as Microsoft, it would be confusingly similar. Some styles, like the script used on Coca-Cola(TM) products, are so well known that even a completely different name in a similar script could be held to be confusingly similar. However, courts can also take judicial notice that an infringing mark is confusingly similar if it is obvious to even a casual observer.
16.2. In an action for Infringement, the basic inquiry generally involves a same set of questions. They are
i. How strong is the mark being defended?
ii. How similar are the products in question
iii. How similar are the marks in question
iv. Have consumers actually been confused
v. Which marketing channels have been used
vi. How likely is the consumer to exercise care when purchasing the products in question
vii. What was the defendant's intent in selecting the mark
viii. How likely are the product lines to expand
16.3. The forms of confusion between Trade Marks are as follows:
16.3.1. Confusion between related products: If one product is offered under a mark similar or identical to another, and the products would be confused by the buying public if sold under the same mark, an infringement can be found. Examples from actual infringement cases include Slickcraft and Sleekcraft boats, Bonamine and Dramamine medications, Pledge and Promise cleaners, and Duron and Durox paints.
16.3.2. Confusion as to source. Confusion can also be found when the same or similar mark is applied to different types of goods. One early case, involving Borden milk and Borden ice cream, was deemed to be non-infringing in 1912; in more recent years, such cases have routinely led to findings of infringement.
16.3.3. Confusion as to sponsorship. Even where consumers are unlikely to be confused as to source, they may be confused as to sponsorship. Team logo merchandise is a common example; consumers may expect that they are supporting the New York Yankees by purchasing a Yankees cap.
16.3.4. Initial interest confusion. Sometimes, famous marks are used to lure consumers to different businesses. "Cybersquatting" by registering a well-known trademark as a domain name is one well-known example. Another is the use of meta tags to fool search engines: a little-known adult Web site may attempt to attract visitors by showing up in web searches for more well-known adult entertainment franchises. Both activities can be considered trademark infringement by confusion Post-sale confusion. Post-sale confusion is often used to find infringement in counterfeit goods, such as fake watches and handbags. While the purchaser is likely to understand that they are buying a counterfeit product, the aim is to confuse others into thinking the product comes from a different source.
16.3.5. Reverse confusion. Although confusion cases generally involve a little-known business using a well-known mark, confusion can also be found when a well-known business uses a little-known mark.
17. Dilution.
17.1. Trademark infringement can also be found in the absence of any confusion at all. Many trademarks are deemed to have a distinctive quality, and any third-party use that diminishes this distinctiveness is considered to be dilution, which is an independent cause of action from traditional infringement. Traditional types of distinction include blurring, in which the diluter lessens the ability of the mark to uniquely identify one source of goods or services, and to tarnish the quality, in which the diluter associates the mark with scandalous or obscene material, thus attacking the good character of the mark or its owner.
17.2. The textbook case of dilution is Eastman Photographic Materials v. Kodak Cycle, 15 R.P.C. 105 (Eng. 1898), in which the maker of Kodak cameras brought suit against a company producing Kodak bicycles. There was little chance of cameras being confused with bicycles: the risk was removing the Kodak name's association with cameras.
17.3. The Federal Trademark Dilution Act of 1995 added a dilution statute to the Lanham Act. Dilution can be found whenever a "famous mark" is used by another, "if such use begins after the mark has become famous and causes dilution of the distinctive quality of the mark." 15 U.S.C. 1125(c). However, a recent law has made significant changes to the Federal dilution statute.
18. Contributory infringement.
18.1. Trademark law has a contributory infringement doctrine similar to those under patent law and copyright law. Unlike its sister doctrines, however, contributory infringement of trademarks is not a very well-developed doctrine. It has come up in a few contexts, including cybersquatting liability and liability for landlords whose tenants sell counterfeit goods.
19. Defenses to infringement
19.1. Genericide - Many trademarks have been invalidated because they have lapsed from fanciful, arbitrary, suggestive or descriptive status to generic status. Genericide is a defense to trademark infringement: the use of a trademark that has become generic over time is not infringement. Examples include i) Aspirin; - Bayer Co. v. United Drug Co., 272 F. 505 (S.D.N.Y. 1921), ii) Cellophane - DuPont Cellophane Co. v. Waxed Products Co., 85 F.2d 75 (2d Cir. 1936), iv) shredded wheat; Kellogg Co. v. National Biscuit Co., 305 U.S. 111 (1938), v) thermos; King-Seeley Thermos Co. v. Aladdin Industries, 321 F.2d 577 (2d Cir. 1973), vi) Murphy bed; Murphy Bed Door Co. v. Interior Sleep Systems, 874 F.2d 95 (2d Cir. 1989)
19.2. Functionality - There is still a sharp divide between patent and trademark law, illustrated by the doctrine that functional marks cannot be protected as trademarks. As stated above, functionality is most common when defending claims for infringement of trade dress and product configuration.
19.3. Abandonment - Under the Lanham Act as amended in 1994, a mark is deemed "abandoned" "when its use has been discontinued with intent not to resume such use." Nonuse for three consecutive years is considered prima facie evidence of abandonment. 15 U.S.C. § 1127
19.4. Non-trademark use - Use of a mark is only infringing if the mark is used as a mark. For instance, mentioning a mark in an article is generally not infringement. Using a mark as the basis of a song is generally not infringement ("Barbie Girl"; see Mattel v. MCA Records, 296 F.3d 894 (9th Cir. 2002)). Likewise, mentioning a mark in the title of a work, as in The Lexus and the Olive Tree or The Devil Wears Prada, is generally not infringement. However, using Star Trek in the title of an unauthorized book about Star Trek would likely infringe the mark, since the mark is used on other books authorized by its holder.
20. Remedies
20.1. Injunction is a standard remedy for trademark infringement. The usual injunction is to halt production and sale of infringing goods and services. In some cases, the court might also award an injunction for corrective advertising, which forces the defendant to pay for an amount of advertising necessary to reverse the damage to the plaintiff's mark.
20.2. Damages for infringement is awarded based on the factors such as i) the Defendant's profits, ii) Damages sustained by the Plaintiff and iii) cost of bringing the lawsuit - 15U.S.C. § 1117. The Plaintiff is responsible for proving the defendant's sales under point i, as well as their own damages and costs under point ii and point iii. The Defendant is responsible for proving their costs to reach a final figure for Defendant's profits
21. Trademark Litigation – Development And Trends:
21.1. Developments in the U.S. Supreme Court - regarding relationship between fair use and likelihood of confusion
21.1.1. In KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 125 S.Ct. 542 (2004) (Souter, J.) The Supreme Court held that, in determining whether a defendant has made fair use of a word or phrase claimed by another party to be a trademark (in this case MICROCOLOR for permanent makeup), the defendant need not prove a lack of likelihood of confusion. It is appropriate to consider some likelihood of confusion factors, however, because they also bear on fair use. For example, intent to adopt another’s mark would suggest that the defendant has not made a good faith fair use. In addition, actual confusion suggests that the defendant may not be using the designation in a descriptive manner, but rather as a trademark.
21.1.2. Moseley v. V. Secret Catalogue, Inc., 537 US 418 (2003)(Stevens, J.) The Supreme Court held that a finding of dilution required a showing of actual dilution supported by evidence of injury to economic value of the mark, such as diminished capacity of the mark to identify and distinguish goods or services sold in stores or catalogs. While mere customer association between similar but not identical marks is not enough to support a finding of dilution, actual loss of sales or profits is likewise not required. The Court noted that this interpretation of federal law is in opposition to many state statutes that require only a likelihood of dilution.
21.1.3. TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U.S. 23 (2001) (Kennedy, J.) The Supreme Court held that the existence of a prior patent on features later claimed to be protected by trade dress may have ‘vital significance’ in the trade dress claim because it lends strong evidence of functionality. The Court stated that where the expired patent claimed the same features, the entity that seeks trade dress protection carries the burden of proof to show that the feature is not functional.
21.1.4. Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 US 205 (2000)(Scalia, J.) The Supreme Court held that product design is entitled to unregistered trade dress protection where the product design is distinctive and has acquired secondary meaning because design itself is not inherently distinctive.
21.2. Developments in The Circuit Courts - Likelihood of confusion
21.2.1 Beacon Mut. Ins. Co. v. OneBeacon Ins. Group, 376 F.3d 8 (1stCir. 2004) The First Circuit reversed a grant of summary judgment on the grounds that, even though the plaintiff could not prove lost sales, the infringement caused actual confusion among those in a position to influence sales and others, and therefore harmed the plaintiff’s goodwill and reputation. The evidence showed that the parties’ respective use of the ONEBEACON and BEACON MUTUAL marks for worker compensation insurance services caused misdirected communications among injured workers, health care workers, third party insurers, and attorneys. Such confusion, although not directly resulting in lost sales, was found to be commercially relevant and actionable by the First Circuit.
21.2.2. Citizens Financial Group Inc. v. Citizens Nat’l Bank of Evans City,383 F.3d 110 (3d Cir. 2004) In this reverse confusion case involving the CITIZENS mark, the Third Circuit held that the issue was whether confusion was likely in the senior user’s market, not in the larger market of the junior user. Thus, survey evidence must correspond to the senior user’s geographic area. The court also found that the district court erred in molding the verdict to allow the junior user the right to use the mark in the senior user’s market, and directed that an injunction be entered.
21.2.3. Kos Pharmaceuticals Inc. v. Andrx Corp., 369 F.3d 700 (3d Cir.2004) The Third Circuit reversed the district court’s determination that the owner of the ADVICOR mark for a prescription anticholesterol drug was not entitled to a preliminary injunction against the owner of ALTOCOR mark for similar drugs. The court applied the ten-factor Lapp test for likelihood of confusion, and found that the lower court erred in focusing on the heightened care likely to be exercised by medical professionals, when the Lapp factors otherwise favored the plaintiff and the drugs were marketed to consumers in direct competition with each other.
21.2.4. What-A-Burger of Virginia, Inc. v. Whataburger, Inc. of CorpusChristi, Texas, 357 F.3d 441 (4th Cir. 2004) In reversing the lower court’s findings of laches and acquiescence, the Fourth Circuit noted that there was no likelihood of confusion between the marks (WHATABURGER and WHAT-A-BURGER) because the parties used the marks in distinct geographical markets. Thus, an infringement claim cannot be barred by laches or acquiescence until one party shows a likelihood of entering the other’s territory and thereafter delays in enforcing its rights.
21.2.5. Playboy Enterprises, Inc. v. Netscape Comm. Corp., 354 F.3d 1020(9th Cir. 2004) The Ninth Circuit reversed the district court’s order of summary judgment in favor of Netscape, on the grounds that its practice of “keying” certain search terms (including PLAYBOY) so that banner ads of third parties appear when those terms are entered into a search engine may constitute trademark infringement. The court reaffirmed that initial interest confusion is actionable as trademark infringement, and that the 8-factor Sleekcraft test for likelihood of confusion applies.
21.2.6. Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin MaisonFondée en 1772, 396 F.3d 1369 (Fed. Cir. 2005) The Federal Circuit affirmed the TTAB’s finding that VEUVE ROYALE was confusingly similar to the opposer’s VEUVE- formative marks, stating that the fame of a mark for likelihood of confusion purposes must be measured in relation to the class of customers and potential customers rather than the general public. The court reversed the TTAB’s finding of likelihood of confusion with respect to the opposer’s WIDOW mark, however, on the grounds that consumers would be unlikely to translate VEUVE to WIDOW, and that the doctrine of foreign equivalents therefore did not apply.
21.2.7. Playtex Products Inc. v. Georgia Pacific Corp., 390 F.3d 158 (2dCir. 2004) The Second Circuit Court affirmed summary judgment for the defendant on the grounds that QUILTED NORTHERN MOIST ONES was not confusingly similar to WET ONES for pre-moistened towlettes. Applying the eight Polaroid factors used to address likelihood of confusion, the court noted that the marks were dissimilar due to the defendant’s prominent use of its house mark, and that there was no evidence of actual confusion or bad faith.
21.2.8. Surfvivor Media, Inc v. Survivor Productions, --- F.3d ---- (9th Cir.2005) In this reverse confusion case, the owner of the SURFVIVOR mark for beachwear, sunscreen, and surfboards sued the producers of the SURVIVOR television show for infringement. The Ninth Circuit affirmed the entry of summary judgment in favor of defendants because no material issue of fact was raised with respect to likelihood of confusion under the Sleekcraft test. The court found that the two marks were similar in sound but dissimilar in appearance. The court also relied on the absence of evidence of actual confusion, the unrelated nature of the goods, and an absence of intent to infringe.
21.2.9. Team Tires Plus Ltd. v. Tires Plus Inc., 394 F.3d 831 (10th Cir.2005) The Tenth Circuit reversed summary judgment on the grounds that the district court failed to analyze the likelihood of confusion caused by the parties’ respective uses of TIRES PLUS in connection with tire stores and franchising, and erroneously treated the differences in services as dispositive.
21.2.10.Gateway, Inc. v. Companion Products, Inc., 384 F.3d 503 (8th Cir.2004) The Eighth Circuit affirmed the trial court’s judgment that a stuffed black-and-white cow toy that was intended to be wrapped around the body of a computer infringed upon Gateway’s black and white cow print trade dress. The court agreed that Gateway’s trade dress had acquired distinctiveness through secondary meaning and was non-functional, and that there was a likelihood of confusion among an appreciable number of consumers.
21.2.11. Dippin’ Dots, Inc. v. Frosty Bites Distrib., LLC, 369 F.3d 1197(11th Cir. 2004) The Eleventh Circuit affirmed the district court’s grant of summary judgment to the defendant, where the plaintiff’s alleged trade dress (size, color, and shape of flash-frozen ice cream product) was functional and the parties’ logos were so dissimilar as to preclude a likelihood of confusion. The district court found that the plaintiff’s trade dress was functional under both the traditional test and competitive necessity test of functionality, and took judicial notice of the fact that color indicates the flavor of ice cream.
21.2.12. Nissan Motor Co. v. Nissan Computer Corp., 378 F.3d 1002 (9thCir. 2004) The Ninth Circuit affirmed the district court’s application of the dilution statute, even though the defendant began using NISSAN.COM and NISSAN.NET prior to its enactment, to authorize prospective relief. The case was remanded, however, to determine whether NISSAN was famous in 1991 when the defendant first made use of the NISSAN mark in a potentially diluting manner. The court affirmed the district court’s rulings that the defendant infringed the NISSAN mark by offering links to automobile-related websites, but not by advertising its own computer-related services. The appeals court found that the injunction violated the First Amendment, however, to the extent that it prevented the defendant from criticizing Nissan Motors on its web site. That issue was remanded to the district court.
21.2.13. AutoZone, Inc. v. Tandy Corp., 373 F.3d 786 (6th Cir. 2004) The Sixth Circuit affirmed summary judgment against the plaintiff on its dilution claim on the grounds that the marks AUTOZONE and POWERZONE were dissimilar and the plaintiff failed to introduce evidence of actual dilution as required by Moseley. Summary judgment was likewise granted and affirmed on the plaintiff’s infringement claim, in light of the differences between the marks and products, absence of actual confusion, and absence of intent to infringe.
21.2.14. Scott Fetzer Co. v. House of Vacuums Inc., 381 F.3d 477 (5th Cir.2004) In this nominative fair use case, the Fifth Circuit affirmed the district court’s award of summary judgment to an unauthorized dealer of vacuum cleaners, as its use of the KIRBY mark to truthfully advertise that it sold and repaired KIRBY vacuum cleaners and did not create a likelihood of confusion. In finding that the defendant’s use of KIRBY did not suggest affiliation or endorsement, the court considered the five “digits of confusion” set forth in Westchester. The appeals court agreed with the district court that the plaintiff’s survey could not properly be considered, as the universe of respondents was too limited and it employed leading questions.
21.2.15. Mattel Inc. v. Walking Mountain Productions, 353 F.3d 792 (9thCir. 2003) The Ninth Circuit, applying the Rogers test, held that there was no trademark infringement by photographs of a Barbie doll which referred to Barbie in the title on the BARBIE mark where public interest in free and artistic expression greatly outweighs its interest in potential consumer confusion. With respect to claims of misappropriation of trade dress, the court found that the artist’s use of the doll was protected under the fair use doctrine as nominative use under New Kids on the Block because he used the doll to conjure up associations of Mattel and identify his own work at the same time.
21.2.16. Retail Services Inc. v. Freebies Publishing, 364 F.3d 535 (4th Cir.2004) The Fourth Circuit affirmed the district court’s entry of summary judgment on the grounds that FREEBIES was generic for the services at issue. The mark was found generic even though it was the subject of an incontestable federal registration, as incontestable status bars challenges based on descriptiveness but not genericness. The court noted that federal registration of a mark is strong evidence that the mark is not generic, but the registration presumption simply shifts the burden to the party challenging the registered mark to show, by a preponderance of the evidence, that the mark is generic. In determining whether a mark is generic, the court will look to dictionaries, evidence of the owner’s generic use of the mark , and its meaning among the public.
21.2.17. In re Oppedahl & Larson LLP, 373 F.3d 1171 (Fed. Cir. 2004) The Federal Court affirmed the PTO’s refusal to register PATENTS.COM on grounds of descriptiveness. The court held that the addition of a top level domain indicator (“TLD”), such as .com, generally does not serve as a source-indicating function. The court compared TLD’s to the addition of Co. or Corp., which never possess source indicating significance. The court declined to adopt a bright-line rule, however, and noted that some marks resembling domain names (such as TENNIS.NET) may be sufficiently distinctive to be registerable.
21.2.18. DeGidio v. West Group Corp., 355 F.3d 506 (6th Cir. 2004) In this case, the owner of the domain name LAWOFFICES.NET sued West Group for using LAWOFFICES.COM. The SixthCircuit agreed that summary judgment was properly granted to West Group, as the term LAWOFFICES.NET was descriptive and had not obtained secondary meaning. In evaluating descriptiveness, the district court relied on the 6-factor test set forth in McCarthy treatise, and this was relied upon by the appeals court as well.
21.2.19. Donchez v. Coors Brewing Co., 392 F.3d 1211 (10th Cir. 2005) The Tenth Circuit affirmed a grant of summary judgment, holding that the mark BEERMAN was generic for beer vending and related entertainment services. The court noted that a survey showed 75.9% of interviewees recognized the mark as generic, and that even if BEERMAN was descriptive, the plaintiff failed to provide evidence of secondary meaning.
For information on the European Union Trade mark Law kindly visit http://en.wikipedia.org/wiki/Trade_mark_law_of_the_European_Union http://en.wikipedia.org/wiki/Community_Trade_Mark
22. Indian Trade Mark Law

22.1. India too has an ancient history of Using Trademarks. The concept of identifying the source of manufacture by a mark was in practice in ancient days. Signatures of craftsmen have been found engraved on goods sent to Iran from India some 3000 years ago! But trademark gained importance after the industrial revolution when large-scale production and distribution of goods all over the world became possible and publicity through print and audio-visual media became necessary.

22.2.The use of modern trade mark as a distinctive sign to indicate the origin or source of the product, carrying with it an association of high quality, goes back to the eighteenth century England, as in the case of cutlery trade. The real boost to trade mark came with Unilever. It marketed its soap under the brand Sunlight, emphasising not the product as such but the brightness that its use will bring to the clothes cleaned with it. The similarity of the products in the same market has necessitated the marking of goods by a symbol, which could distinguish one’s products from similar goods made by others.

22.3. In 1940 the then British Government of India passed the Trade Marks Act for uniform and systematic registration of trade marks in India, which came into force on June 1, 1942. This was replaced by The Trade and Merchandise Marks Act, 1958, which came into effect from November 25, 1959. In the year 1999, with India joining the World Trade Organisation(WTO), as an original member, it became necessary to effect changes in its Trademark Law in consonance with TRIPS. Hence new Trade Mark Act, 1999, was enacted repealing the Act of 1958.

22.4. The Act of 1999 makes important departures from the Act of 1958 in two important respects:
1. Shape of goods is recognised as a trade mark; and
2. Trade Marks are now granted for services also, besides goods.

22.4.1. Goods is defined as anything which is the subject of trade or manufacture. Service means service of any description offered to users. Banking, finance, insurance, transport, energy supply, construction, hotels, entertainment, information and broadcasting etc. are all examples of areas where services are offered in connection with business, industry or commerce. Definition of service is meant to be all subsuming.
22.5. The Registration of Trade Mark Law is done in Mumbai where the Trade Mark Registry is situated. There are branch offices of the Registry at Calcutta, Delhi and Chennai with separate jurisdictions.

23. What is a trade mark in India?
23.1. A trade mark, as currently recognised in India, is a visual symbol (in the form of a word, a name, a device, a symbol, or a label) which identifies any merchant's or manufacturer's goods or services and distinguishes them from similar goods or services of competitors in the trade. It may include shape of goods, their packaging and combination of colours. Recently, non-visual signs have made a strong claim for recognition as trademark. Smell and sound signs fall under such category though they are not yet recognised in India. Several broadcasting organisations and film producers have specific signature tunes to identify their programs.

23.2. The Act makes a distinction between a trademark and a well-known trademark. If a substantial segment of public associates a trade mark with a particular class of goods and services, and if this trade mark is used for other goods or services, and the public is inclined to associate the new goods/services with the earlier goods/services, then the mark is a well known trade mark. If the proprietor of a trademark is an association of persons, who do not make a partnership within the meaning of the Indian Partnership Act, 1932, the trademark is called a collective mark.

23.3. A special class of trademark is termed as certification trademark. These trademark do not indicate the origin of the goods, but are certified by the proprietor of the mark as conforming to certain characteristics, like quality, ingredients, geographical origin etc. Agmark used for food items in India is a certification mark.
24. A good Trademark as per Indian Law:
24.1. A trade mark should be distinctive. Distinctiveness may be inherent or acquired. An invented word may be inherently distinctive as a trade mark e.g. RIN. Other trade mark may have acquired distinctiveness through usage e.g. TATA, Reliance, Revlon. Most brands acquire distinctiveness through use. A brand may depend on the class of goods e.g. Hawkins and Prestige are two distinctive brands in pressure cookers. If the trade name is a word, it should be short and easy to spell, pronounce and remember; if it is a device it should be expressible in a word.

24.2. The word should be an invented word. Zen, Avon, RIN, Flex are all fine examples. The mark can be denied if it is not considered distinctive. A trade mark consisting of parts of a chain wheel and chain to cover a business in chains and chain wheels is not considered distinctive. However, distinctiveness alone is not sufficient for registration of a trade mark. It may also depend on whether other traders, without any improper motives want to use the same mark.
25. Functions of trade mark
25.1. A trade mark performs five main functions:
(a) To identify the origin or source of goods and services and distinguish them from similar products or services of other enterprises. Trade mark facilitate the choice to be made by the consumer when buying certain products or making use of certain services.
(b) To signify that all goods bearing the same trade mark have a single source.
(c) To signify that all goods bearing the same trade mark are of the same quality. However, it is to be understood that there is no legal obligation on the trade mark owner to maintain a specific quality. In fact the House of Lords, UK has approved application of some trade mark to products of different quality in different countries. The brand owner is free to enhance or reduce the quality of the product. The check against deterioration of quality lies with the consumer. If a brand does not give at least the quality that the consumer associates with it, she will switch on to another brand. However, the brand owner is bound to offer the quality features as declared under trade description.
(d) To serve as the principal instrument in advertising and selling of goods and services.
(e) A fifth function, particularly in the case of registered trade mark, has acquired importance over the years, viz. to protect the trade and business interests of the owner of the brand, as also the goodwill associated with the brand, in case of infringement of trade mark.

26. Registration of Trade Mark
26.1. In India an office of the Registrar of trade mark has been established for the maintenance of the trade mark Registry. Controller General of Patents and Designs is also the Registrar of trade mark. The Register of trade mark contains the record
of all registered trade mark, with names, addresses and description of proprietors and users, assignments and transmissions, and conditions and limitations and the name of registered users.
24.1. Any person who claims to be a proprietor of a trade mark can apply to the Registrar of trade mark for its registration. The application may be made in the name of an individual, partners of a firm, a Corporation, any Government Department, a trust or joint applicants claiming to be the proprietor of the trade mark.
25. Application
25.1. Application in the prescribed form has to be filed in the office of the trade mark Registry within whose territorial limits the principal place of business in India of the applicant, or the first applicant in the case of joint applicants, is situated. The Registrar is required to classify goods and services in accordance with the international classification for registration of trade marks. A single application is sufficient for registration of a trade mark for different classes of goods and services; however, the fee is payable for each class separately.

25.2. Every application for registration of a trade mark shall contain a representation of the mark in the place provided in the form for the purpose. Five additional representations of the mark have to be supplied with the application. The application can either be accepted completely or accepted subject to amendments or rejected. It is possible that an application is accepted and later, before registration, the acceptance is found to be in error. In such a case the Registrar, after hearing the Applicant may withdraw the acceptance.

26. Advertisement
Soon after acceptance, the application is advertised in the Trade Mark Journal to provide the public an opportunity to oppose the registration. Any person may, within three months from the date of the advertisement or within such further period not exceeding one month, give notice in writing to the Registrar of opposition to the registration. When the procedure for registration, including the opposition, if any, is satisfactorily complete, the Registrar is mandated to register the mark. The registration of a trade mark is for a period of ten years, but it may be renewed from time to time indefinitely.
27. What kind of trade marks can be Registered?
27.1. A trade mark which consists of at least one of the following essential characteristics can be registered.
a) The name of a company, individual or firm represented in a particular or special manner;
b) The signature of the applicant for registration;
c) One or more invented words;
d) One or more words having no direct reference to the character or quality of the goods except the exceptions listed in the next section;
e) Any other distinctive trade mark ; and
f) A trade mark which has acquired distinctiveness by use over a prolonged period of time.

27.2. A part of trade mark can be registered separately in addition to a whole trade mark if it satisfies the requirements of registration of a trade mark. The Act also provides for registration of the same or similar trade mark by more than one proprietors in the case of honest concurrent use or other special circumstances.

28. Trademarks not Registrable
28.1. The Act debars a trade mark from registration if it is not distinctive, or consists exclusively of marks or indications which have become customary in the current language and practice. Also, mark falling in any of the following categories is not registerable:
28.1.1. a mark which is identical with or deceptively similar to a trade mark already registered in respect of the same goods or goods of the same description;
28.1.2. a mark the use of which would be contrary to any law or which would be disentitled for protection in a court of law;
28.1.3. a mark comprising or containing scandalous or obscene matter;
28.1.4. a mark comprising or containing any matter likely to hurt the religious susceptibilities of any class or section;
28.1.5. a word which is commonly used and accepted name of any single chemical element or compound, in respect of chemical substances; and
28.1.6. a geographical name or a surname or a personal name or any common abbreviation thereof or the name of a sect, caste or tribe in India.

28.2. Shape trade mark attract prohibition from registration in certain conditions which may arise in a very limited number of cases, and it would be difficult in those cases to satisfy the distinctiveness criterion. A mark cannot be registered as a trade mark, if it consists exclusively of the shape of goods
(a) which results from the nature of goods themselves. For example, shape of an apple used for apples or their packaging;
(b) which is necessary to obtain a technical result. An exclusively technical shape will be the one if no other shape will perform its function;
(c) which gives substantial value to the goods. There may be difficulty in interpreting this provision.
28.3. The word exclusively is to be noted here. If a mark has a shape of any of the descriptions given above but has other additional features, it could be considered for registration subject to other essential qualifications for a trade mark. Also, an
unregistered trade mark can continue to have a shape of a description that makes it ineligible for registration. There are also relative grounds for refusal of registration.

28.4. If a trade mark is identical with an earlier trade mark, or if it is similar to an earlier trade mark and covers identical goods and services so as to cause confusion in the mind of the public, it will not be registered.

28.5. If a trade mark has similarity or identity with an earlier well-known trade mark but is sought to be applied to a different category of goods, it will not be registered, as it seeks to exploit a well known brand for an unfair advantage or may harm the reputation of the earlier, well known trade mark.
28.6. If a trade mark violates any law, in particular the law of passing off protecting an unregistered trade mark, or the law of copyright, it shall not be registered.

29. The Act provides for registration of same or similar trade mark by more than one proprietor in case of honest, concurrent use. The trade mark is considered to be an incorporeal property of the owner of the mark. So it is assignable and transmissible as in the case of other forms of property. But considering the peculiarities of the property in trade mark, it is subject to a number of restrictions on assignability. A registered trade mark has to be used on the goods it was applied for. If it is not used for long, it can be taken off the register on application made by any aggrieved person to the Registrar or to the Appellate Board on the ground that its owner had no intention to use it while registering it.

30. Similar and Deceptively Similar Trade Mark
30.1. The word similar is not defined in the Act. However, a trade mark is said to be deceptively similar to another if it so nearly resembles that other mark as to be likely to deceive or cause confusion. The deceptively similar mark includes not only confusion but deception also. Near resemblance is mentioned in the Act in connection with registered trade mark in the name of the same proprietor which may closely resemble each other, so as to deceive or cause confusion in the mind of a user. The Registrar may require them to be registered as associated trade mark.The following factors are to be taken into consideration when deciding the question of similarity:
30.1.1. The nature of the marks;
30.1.2. The degree of resemblance;
30.1.3. The nature of goods in which they are likely to be used as trade mark;
30.1.4. The similarity in nature, character and nature of goods in which it is used;
30.1.5. The nature of the potential class of consumers; and
30.1.6. The visual and phonetic similarity.

31.1. Exploiting Trade Marks – The Owner of a Trade mark can exploit his mark to his best advantage by either assigning and transmitting or by Licensing.


32. Assignment and Transmission
32.1. The registered trade mark is assignable and transmissible, in respect of either some or all the goods or services for which the trade mark is registered. The assignment or transmission of a must be in writing. Transmission means transfer by operation of law, devolution to the representative of a deceased person and any other mode of transfer other than assignment. If assignment or transmission of a trade mark would create multiple exclusive rights in more than one person, which might deceive or cause confusion, restrictions could be imposed on such assignment or transmission. The confusion or deception could be in relation to same goods or services, same description of goods or services goods or services, or description of goods or services which are associated with each other.

33.1. Licensing and Registered Users
33.2. The proprietor of a trade mark can assign or licence it to a third party for use. The third party can be either a registered user or an unregistered user. If some one wants to be a registered user of a trade mark, he has to make an application in a prescribed manner jointly with the proprietor of the trade mark, to the registrar, enclosing a copy of the agreement between them stating the trade mark and the specific uses to be covered by the user, the degree of control to be exercised by the proprietor, and whether there would be any more registered users permitted by the proprietor. For an unregistered user, permitted by the proprietor, the use of trade mark shall be deemed to have been made by the proprietor and not by the person permitted by the proprietor.

33.2. The right to the use of the mark is not assignable and transmissible. Subject to any agreement between the parties, a registered user may sue for infringement as if he were the proprietor of the trade mark and make the registered proprietor a defendant in the case.


34. Infringement
34.1. If a person, who is not the owner of a registered trade mark, without permission from the owner uses the same trade mark, or a deceptively similar trade mark in the course of trade mark, he infringes the trade mark and is liable to be sued for legal remedies by the rightful owner, or persons so authorised. No action for infringement is available in respect of unregistered trade mark; however, common law rights for action against ‘passing off’ are not affected.
34.2. Specifically, infringement is caused in the following cases:
34.2.1. the mark is identical and is used for similar goods/services;
34.2.2. the mark is similar to the registered mark and is used for the same or similar goods/services as covered by the registered trade mark;
34.2.3. the mark is identical with the registered trade mark and is used for identical goods; and the mark is therefore likely to cause confusion on the part of the public.
34.3. If a trade mark has a reputation in India, the use of a mark identical with or similar to it, on goods or services which are different, constitutes infringement as such use, without due cause, would take unfair advantage of a reputed trade mark or harm its distinctive character. The Act prohibits adoption of a registered trade mark by another person as trade name, i.e. the name of an enterprise.
34.4. A suit for infringement of registered trade mark must be filed in the district court within whose territorial jurisdiction, the plaintiff (or if there are more than one such person, any one of them) instituting the suit or proceeding actually and voluntarily resides or carries on business or personally works for gain.
35. Offences and Penalties
35.1. A person making a registered trade mark or a deceptively similar mark is deemed to falsify a trade mark if he is doing it without the consent of the proprietor of the trade mark. Any alteration, addition, effacement of a genuine trade mark also amounts to its falsification. A person who, without authorisation, applies registered trade mark or a deceptively similar mark to goods or services or any package containing goods is deemed to falsely apply the genuine trade mark. If any person uses any package bearing a mark which is identical with or deceptively similar to the registered trade mark for the purpose of packing, filling or wrapping any goods other than the genuine goods of the proprietor of the trade mark he is guilty of falsely applying the trade mark.
35.2. Offence under the Act is committed if a person makes, disposes of, or has in his possession, any die, block, machine, plate or other instrument for the purpose of falsifying or of being used for falsifying a trade mark:
1. applies any false trade description to goods or services, or
2. applies a false indication of the country or place where the goods were produced or name and address of the manufacturer, or of the person for whom they are produced.
3. tampers with, alters or effaces an indication of origin which has been applied to any goods to which it is required to be applied.
35.3. The above mentioned offences shall be punishable with imprisonment for a term of minimum of six months but which may extend to three years and with a minimum fine of fifty thousand rupees but which may extend to two lakh rupees. For adequate and special reasons mentioned in the judgement, the court may impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand rupees.
35.4. Penalty for selling goods or providing services to which false trade mark or false trade description is applied is punishable with imprisonment for a minimum term of six months but which may extend to three years and with a minimum fine of fifty thousand rupees but which may extend to two lakh rupees.
35.5. Enhanced penalty can be imposed on second or subsequent conviction. Such offences shall be punishable with imprisonment for a term between one to three years and with fine between one lakh rupees to two lakh rupees.
35.6. A person, who represents an unregistered trade mark as a registered trade mark, shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both.
35.7. The penalty for falsification of entries in the register is imprisonment for a term, which may extend to two years, or a fine, or both. The use of words, which may falsely suggest that a person’s place of business is officially connected with the trade mark office, attracts imprisonment for a term up to two years or a fine or both.
35.8. If the person committing an offence under this Act is a company, the company as well as every person in charge of, and responsible to, the company for the conduct of its business at the time of the commission of the offence shall be deemed to be guilty of the offence. A company means any corporate body and includes a firm or other association of individuals. Abetment of any offence is punishable as if the abetter himself committed that offence.
For more information on Indian Trademark registration procedures kindly visit http://ipindia.nic.in/tmr_new/default.htm

36. Indian Trade Mark Act, 1999: Salient Features
36.1. Some major changes brought about in the law of trade marks in India by the Trade Mark Act, 1999 are summarised as under:
36.1.a. Inclusion of trade mark for services in the definition of trade mark;
36.1.b. A new provision for registration of Collective Marks;
36.1.c. Prohibition of registration of certain marks which are mere reproductions of or imitations of well known mark;
36.1.d. Provision for filing a single application for registration in more than one class of goods and/or services;
36.1.e. Increasing the term of registration of a trade marks from 7 to 10 years and providing a grace period of six months for payment of renewal fees;
36.1.f. Amplification of circumstances in which validity of registration can be contested;
36.1.g. Vesting the final authority in the Registrar for disposing of application for registration of Certification Trade Mark ;
36.1.h. Harmonizing penal provisions of the trade marks law with The Copyright Law;
36.1.i. Provision for establishment of an Appellate Board.
37. Amendments - For the original pdf text of The Amendment Bill to be introduced in Lok Sabha for the amendment of the Act 1999, kindly visit http://www.prsindia.org/docs/bills/1187934649/1187934649_Trade_20Marks.pdf

REFERENCE
1.Trade Mark Act, 1999 (Bare Act),
2.Trade Mark Act, 1958 (Bare Act),
3. Legislations on Trade Mark of EU, US, France, Germany, Japan etc.,
4. Intellectual Property Law-Prof. A. Chandrasekaran
5. Law relating to Patents, Trademarks, Copyright, Designs & Geographical Indications- B.L.Wadhera
6. Intellectual Property Law – P.Narayanan
7. Cochin Law Review
8. Kashmir Law Review
9. www.indlaw.com
10. http://www.wipo.int/treaties/en/ip/tlt/
11. http://www.wipo.int/freepublications/en/marks/900/wipo_pub_900.pdf
12. http://en.wikipedia.org/wiki/Trademark_distinctiveness
13. http://en.wikipedia.org/wiki/Priority_rights
14. http://en.wikipedia.org/wiki/Trademark_infringement
15. http://ipindia.nic.in/tmr_new/default.htm
16. www.prsindia.org/docs/bills/1187934649/1187934649_Trade_20Marks.pdf 17. http://en.wikipedia.org/wiki/Trade_mark_law_of_the_European_Union
18. http://en.wikipedia.org/wiki/Community_Trade_Mark