The Trade Marks Act, 1999, s. 2 (b) defines trade mark 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 colours. Also, s. 2(m) defines mark as including a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof; For instance Ford - named after Henry Ford, is a name, then IBM - an abbreviation, Apple for computers - is a word, etc. They may also be figurative elements like that of the Shell oil company.
The concept of trademarks is more or less uniform all over the world. A trademark must have two distinct characteristics that it should be distinctive and it should not be deceptive. A trade mark like…show more content… Textron, Inc., where on January 6, 2012, Electronic Arts filed a declaratory judgment suit against Textron, Inc. and others seeking ruling that its depiction of Bell Helicopters in its video game Battlefield 3 is not an infringement.
Textron responded with counterclaims based on infringement of its trademarks, trade dress and false designation of origin and sponsorship. In moving to dismiss the counterclaims in the suit, EA asked the district court to rule that it has a right under the First Amendment to depict real-life military helicopters in its video games as an expressive work, without the permission of the aircraft's maker. Following its application of the Rogers test to use of the Bell Helicopters in Battlefield 3, the district court denied EA’s motion to dismiss the counterclaims.
The court noted that under Rogers the contested trademark use must have “no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless [it]