Trademark Protection for Buildings – Prateik N 1

Recently for the first time, India’s Trade Mark Registry has assigned an image trademark to Mumbai’s Taj Mahal Palace hotel. This makes the 114-year-old building the first in the country to get such a registration and has joined the elite and small club of trademarked properties in the world which includes the Empire State Building in New York, the Eiffel Tower in Paris and Sydney Opera House.

The scope of “trademark” is not limited to brands and logos. Sound, images, colour combinations, 3D images, and so on can also be registered as trademarks if they meet the definition of “trademark” as per law. Section 2(1)(zb) of the Trade Marks Act, 1999 defines Trademark as “… a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours.” Thus, in case of buildings if it can be graphically represented and is capable of distinguishing the goods/services of one person from another then it can be registered as a trademark.

There are a few key reasons for getting such protections. Firstly, it is to protect from the practice of replication known as copycat architecture and to protect the unique design of the building and preserve its uniqueness and heritage. Secondly, to protect the structure from being used in productions that could tarnish and dilute the image. For e.g. usage of the trademark by an alcohol manufacturer may tarnish the reputation of the building and dilute its trademark status. Thus nobody can use the trademarked image for commercial purposes without a license from the company. Selling any object with the trademarked image on it will be considered as infringement action. Also any sort of commercial use will be with the permission and may include the payment of a licensing fee to the company.

Another advantage in case of trademark registration rather than a design or copyright registration is that copyright registration only protects the aesthetic value of the building; design registration only helps in increase of commercial revenue generation. A trademark registration on the other hand however, not only increases the commercial revenue generation through licensing, it also signifies that a particular landmark denotes the source or acts as a source indicator while also protecting the distinctiveness of the landmark. Also, the term of protection of a trademark is much longer than that of a copyright or design protection.

The grant of this trademark has opened a new dimension to the concept of trademarks. India with its vast heritage and culturally significant landmark buildings can certainly benefit out of this precedent. It also serves as an indication of the development of the law of trademark in India.


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