Annotation
Recent emphasis on the effect of the grant of trademark rights on competition has focused largely on "substantive" commercial concern and reputation (registered and unregistered marks, passing off) rather than on public interest. Arguably the nature and extent of rights in goodwill has a more direct and significant effect on the competitive operation of markets because established reputation is a formidable barrier to entry, but the consumer interest also has equal weightage. In this light, the recent expansion of legal protection for trade marks should be closely scrutinised. It is important to maintain a productive balance between the legitimate ambitions of individual traders and the public interest in dynamic markets.

Abstract
Trademark, if talked about at a global platform, has various facets and approaches of treatment and interpretation and hence is open to discussions and criticisms. So, there cannot be any limitation set on its ambit of study. This paper, however is limited to the motto of Trademark Law at a principal place and hence goes on to infer the major objective behind such law. The paper also investigates that whether the objective of Trademark Law is codified in the act or is a result of the rigorous and regular judicial exercise?

The sole purpose of this study is to examine the principal and collateral aims of trademark law in the present era. The study is significant in extracting the extensive jurisprudence from all around the world on the said issue and their way of dealing with such matters in the legal arena. It also tries to critique the approach of trademark law for favouring the economic benefits and not the public interest in the first place. It is also the goal here to make a concrete comparative study between the ways, different legal systems treat the trademark issues.

A trademark is much like that of a human being because the life of a trademark may be correlated to the life of a human being. Every human being is to be named immediately after birth on this earth and on the same line every product is to be identified with a trademark. Hence there is need to nurture trademarks like human beings.

Trademark is a major asset of any company. Hence 'trademarks management' in an enterprise comprises two aspects:
1. Trademark Policy
2. Trademark Protection

Currently, few could credibly argue against the significance of trademarks in modern society.[2] Yet, despite the recognition of the importance of trademarks, mirrored in their explicit legal protection under most constitutions, the topic was shadowed until recently overshadowed by other fields of intellectual property. However, the recent acknowledgment of the controversial modern functions, which led to the expansion of the boundaries of trademark protection, has brought trademark law back into focus.

This focus requires an analysis of the value of trademarks, an understanding of the expansion of their legal protection, and an evaluation of the merits of such an expanded protection. But, in particular, it requires an evaluation of the most favourable approach for the integration of the objectives of trademark, which have shifted from public policy to commercial vitalities and benefits. To do so, this paper uses the traditional and modern objectives of trademark as an analytical tool that helps illuminate on the actualities of these functions, evaluate the normative justifications advanced for their protection, and discusses the effectiveness of existing counterbalances.

What is a Trademark: A global analysis
Trademarks are words, signs, symbols or combinations thereof that identify goods as manufactured by a particular person or company, therefore allowing consumers to distinguish between goods originating in different sources. When such signs and symbols are applied to services, we refer to them as service marks. The trademark system is designed, inter alia, to protect the reputational assets of a natural person or a legal entity and, therefore, provides incentives for investments in quality of goods and services sold on the market.[3]

Trademarks belong to the wider family of intellectual property rights (IPRs). Businesses and individuals register trademarks in special registers created and maintained by governments. Once registered, owners of trademarks benefit from legal protection against unauthorised use by third parties.[4] Registration prevents the coexistence of confusingly similar trademarks and serves as proof of ownership, for example, in the case of legal disputes. While trademark laws and registers can be found in virtually every country, national regimes often differ markedly as to whether particular signs qualify as trademarks, the scope of protection, guidelines for avoiding confusing marks, registration costs, legal means available to fight infringement and other important details.[5]

Various international instruments on Intellectual Property Rights have played a significant role in the development and growth of legal framework related to Intellectual Property in the recent past. Numerous international treaties and conventions have been negotiated to promote cooperation among states for better protection of Intellectual Property Rights. These international instruments are administered by a specialized agency of the United Nations known as the World Intellectual Property Organisation (WIPO).[6] Many countries have adopted stronger protection for Intellectual Property Rights through various bilateral regional and multilateral treaties. Over a course of history various multilateral conventions and treaties have emerged for the protection of Trade Mark. The main purposes of these international instruments affecting Trade Marks are better protection of rights for various types of marks, harmonization of laws and efficient system for multilateral filing for global protection.

 

Trademark as per Indian Law

India's obligations under the TRIPS Agreement for protection of trademarks, inter alia, include protection to distinguishing marks, recognition of service marks, indefinite periodical renewal of registration, abolition of compulsory licensing of trademarks, etc.

With the globalization of trade, brand names, trade names, marks, etc. have attained an immense value that require uniform minimum standards of protection and efficient procedures for enforcement as were recognised under the TRIPS. In view of the same, extensive review and consequential amendment of the old Indian Trade and Merchandise Marks Act, 1958 was carried out and the new Trade Marks Act, 1999 was enacted. The said Act of 1999, with subsequent amendments, conforms to the TRIPS and is in accordance with the international systems and practices.

The Trade Marks Act provides, inter alia, for registration of service marks, filing of multiclass applications, increasing the term of registration of a trademark to ten years as well as recognition of the concept of well-known marks, etc. The Indian judiciary has been proactive in the protection of trademarks, and it has extended the protection under the trademarks law to Domain Names as demonstrated in landmark cases of Tata Sons Ltd. v. Manu Kosuri & Ors[7], and Yahoo Inc. v. Akash Arora[8].
India, being a common law country, follows not only the codified law, but also common law principles, and as such provides for infringement as well as passing off actions against violation of trademarks. Section 135 of the Trade Marks Act recognises both infringement as well as passing off actions.

Section 2(1) (zb) under the 1999 Act defines the term "trade mark" as follows:
"'Trade mark' means 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; and:
in relation to Chapter XII (Offences, Penalties and Procedures) (other than Section 107), a registered trade mark or a mark used in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services, as the case may be, and some person having the right as proprietor to use the mark; and
in relation to other provisions of this Act, a mark used or proposed to be used in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services, as the case may be, and some person having the right, either as proprietor or by way of permitted user, to use the mark whether with or without any indication of the identity of that person, and includes a certification trade mark or collective mark."

Section 2 (1)(m) defines a "mark" to include a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof.
Section 2(1)(j) defines "goods" to mean anything which is the subject of trade or manufacture.

Section 2(1)(q) defines "package" to include any case, box, container, covering, folder, receptacle, vessel, casket, bottle, wrapper, label, band, ticket, reel, frame, capsule, cap, lid, stopper and cork.

Section 2(1)(z) defines "service" to mean service of any description which is made available to potential users and includes the provision of services in connection with the business of any industrial or commercial matters such as banking, communication, education, financing, insurance, chit funds, real estate, transport, storage, material treatment, processing, supply of electrical or other energy, boarding, lodging, entertainment, amusement, construction, repair, conveying of news or information and advertising.

Essentials of a trade mark
From the above definitions, the following essential ingredients emerge for constituting a trade mark under the 1999 Act:
1. it must be a "mark";
2. it must be capable of being represented graphically;
3. it must be capable of distinguishing the goods or services of one person from those of others;
4. it must be used or proposed to be used in relation to goods or services;
5. there must be a visual representation of the mark;
6. use of the mark in relation to goods must be upon or in physical or in any other relation whatsoever to the goods; and in relation to services, it must be used as a part of any statement about the availability, provision or performance of such service; ans
7. the objective of use of the mark should be to indicate a connection in the course of trade between the goods or services, and some persons having the right to use the mark either as proprietor or by way of permitted use. It is not necessary to reveal the identity of the person using the mark.

Nature and scope of Trademark
Traditionally, trademarks were considered as convenient tools for source identification, and were granted legal recognition on this premise. However, more recently, trademarks have evolved in a new yet challenging medium as an effective tool for both corporate and social communication. The changing nature of trademarks and the subsequent emergence of modern trademark functions have prompted legal change in the whole world. Whilst this result is not in itself surprising, the approach adopted by various nations for the integration of the modern functions into the current trademark system has raised justifiable concerns on whether the balance of the trademark system has been disrupted.

Given the dilemma, various legal investigation agencies are aiming to evaluate and critique the current system for modern trademark protection, and to propose change accordingly. To achieve this objective, they are using judicial scrutiny as an analytical tool capable of reflecting accurately the various dimensions of the modern functions, particularly those aspects which are often overlooked within the textual legal spectrum. Only when the modern functions were fully comprehended, a proposal for a sound, balanced system for protection which takes into account the interests of all players in the market became plausible.

Using an interdisciplinary approach, such agencies showed that the significance of trademarks lies within its communicative value which in turn has three dimensions;
# brand-consumer communication,
# consumer-consumer communication, and
# consumer-public communication.

The effective protection of the modern functions necessitates the recognition of all these three facets. They argue that theoretically, the protection of the brand-consumer communication dimension can be normatively justified based on a misappropriation ground through a limited, well-articulated anti-free riding provision.

However, the scope of the trademark is not limited and it extends to economic purposes as well as dwelves into the consumer rights as well.

Purpose and objective of Trademark: Ambivalence of Trademark
To shed sufficient light on the actual value of trademarks, a multi-lens analysis that focuses on three main parties:
# consumers (public);
# trademark owners; and
# competitors is essential.

Generally, corporations (trademark owners) are increasingly employing exceptional efforts to protect their marks from counterfeiting, imitation, unfair use, and parody among other things.[9] Effective use of trademarks helps them avoid economic, financial, and social loss which may result from pre-emption, competition, and imitation. Trademarks help corporations enhance efficiency of production and differentiate their products in an overly crowded marketplace.[10] For consumers, trademarks facilitate the process of purchase,[11] aid decision making, and most controversially act as a mechanism for self-expression. Finally, competitors benefit from existing trademarks to draw attention to their products, compete effectively and, penetrate new markets.[12]

The object of trademark is to deal with the:
# Precise nature of the rights which a person can acquire in respect of a TM;
# The mode of acquisition of such rights;
# The method of transfer of those rights to others;
# The precise nature of infringement of such rights; and
# The remedies available in respect thereof.

The purpose and function of trademark is that:
1. It identifies the product of its origin;
2. It guaranties its unchanged quality;
3. It advertises the products; and it creates an image for products.

Factors influencing Trademark's Objective
# Legislative Intent explicit in the codified act;
# Judicial interpretation trends;
# Evolution of technology and the moulding of the trademark law according to such developments;
# Commercial necessities;
# Politicization of the Trademark;
# Conflicting principles relating to well-known trademarks;
# More preference to individual economic rights in comparison to consumer benefit.

The Judicial treatment of Trademarks in India
The laws in India which grant individual rights are most of the times preceded by the notions of public policy and collective interests. The same trend can be seen in the trademark law in India. Following are some of the circumstances where the real objective of trademarks keeps switching between individual and public interest:

Well known Trademarks
Well known trademark is defined in Section 2(1)(zg) of TM Act, 1999 as:
"well-known trade mark", in relation to any goods or services, means a mark which has become so to the substantial segment of the public which uses such goods or receives such services that the use of such mark in relation to other goods or services would be likely to be taken as indicating a connection in the course of trade or rendering of services between those goods or services and a person using the mark in relation to the first-mentioned goods or services.

The courts have dealt with well known trademarks with a mixed opinion. This fact is evident from the following case laws :
Sunder Parmanand Lalwani & Ors v. Caltex (India) Ltd.[13]
The first well-known marks case was decided by the Division Bench5 of the High Court of Bombay in 1965 on appeal from the Order of the Single Judge of the same Court. The Single Judge had allowed the appeal of the opponent Caltex (India) Limited's (Caltex) of an order of the Deputy Registrar of Trade Marks rejecting Caltex's opposition to a third-party registration of the mark CALTEX for "Horological and other Chronometric instruments and parts thereof" in Class 14. The Deputy Registrar had rejected Caltex's opposition on grounds that the competing goods and trade channels were different; hence there was no connection in the course of trade between the competing goods; the opponent's reputation was established only in respect of the goods for which its marks were used and therefore, despite the reputation of the opponent's mark CALTEX, the use of the applicant's mark would not be likely to deceive the public. The Single Judge allowed the appeal and affirmed the Deputy Registrar's finding that there had been no likelihood of confusion. However, the Court found that the applicant selected the mark in bad faith and hence it granted the opposition.

Bata India Ltd. v. Pyarelal & Co., Meerut City & Ors[14]
Bata's suit before the District Court alleged that by using the challenged mark BATAFOAM, the defendants had been deceiving customers and that such fraudulent and bad-faith conduct amounted to unjust enrichment by trading off the plaintiff's goodwill and reputation. The court held:
It is this impression which may ultimately cause damage to the reputation of the plaintiff. It amounts to an invasion of his right vis-a-vis the name "Bata."... The name "Bata" is neither a fancy name nor paternal name nor in any way connected with the defendants. It is not the name of a flower or fauna. It is a fancy name of a foreigner who has established his business in making shoes and the like products in this country. The name is well known in the market and the user of such a name is likely to cause not only deception in the mind of an ordinary customer but may also cause injury to the plaintiff-Company.

Daimler Benz Aktiegessellschaft & Anr. v. Hybo Hindustan[15]
Decided in 1993 by the High Court of Delhi, this was perhaps the first Indian ruling that looked in detail into the concept of dilution of well-known marks. The issue in this case was the use of the mark BENZ along with a "three pointed human being in a ring" and the words "German perfection. It need not be restricted to mere machines. Or horizons," in connection with underwear made by an Indian company. Daimler Benz Aktiegessellschaft, Germany, the plaintiff, who owns the famous three-pointed star BENZ logo depicted above, sued the Indian underwear company for passing off. The plaintiff's logo was registered in India in 1951.
Ignoring the defense of honest concurrent use by the defendant, the High Court of Delhi granted the plaintiff's injunction and found that it would be a great perversion of the law relating to trademarks if a mark such as MERCEDES BENZ with the three-pointed star were humbled by indiscriminate imitation by anyone including persons like the defendant who made undergarments. The Court held:10 Such a mark is not up for grabs—not available to any person to apply upon anything or goods. That name . . . is well known in India and world wide, with respect to cars, as is its symbol a three pointed star.

Kirloskar Diesel Recon Private Ltd. & Anr. v. Kirloskar Proprietary Ltd. & Ors[16]
"Kirloskar" is a surname in India. The plaintiffs in this case adopted this term as part of their trade name and trademark in 1888 when they started a small bicycle repair business. The business grew and in 1920 the founders converted their company into a public limited company. Over time, they expanded their business and incorporated several companies. The "Kirloskar Group of Companies" had continuously used the trade name and trademark KIRLOSKAR over several years to denote quality, and the mark had acquired distinctiveness, reputation, and goodwill. In this case before a District Judge in Pune, the plaintiffs complained that the defendants had been using the trademark KIRLOSKAR as part of their corporate name and that such use amounted to passing off. It was also alleged that the defendants' adoption of this mark was in bad faith because one of the defendants had worked for the plaintiffs at one point in time and had even been involved in the plaintiffs' image-building campaign. Accordingly, the Court rejected the defendants' appeals and affirmed the order of the District Judge by observing:
"In passing off action, the plaintiff is not required to establish fraudulent intention on the part of the defendant and as such, it was not necessary for the respondents to establish fraudulent intention on the part of the appellants in incorporating the word "Kirloskar" as part of corporate names of 1st appellant in each of the appeals. It was even not necessary for the respondents to prove causing of actual confusion amongst the customers or public at large by the appellants adopting the word "Kirloskar" as part of corporate names of 1st appellant in each of the appeals. What the respondents were required to establish, which the respondents have established, is a likelihood of deception or confusion."

Honda Motors Co. Ltd. v. Charanjit Singh & Ors[17]
Decided by the High Court of Delhi in 2002, this case concerned the use by a local defendant of the mark HONDA in connection with pressure cookers. Holding in favour of the plaintiff and enjoining the defendant, the Court found that HONDA had a reputation for superior quality products in the field of automobiles and power equipment and that the defendant's use of this mark in connection with pressure cookers would mislead the public into believing that the defendant's business and goods originated from the plaintiff. The Court found that such user by the defendants had also diluted and debased the goodwill and reputation of the plaintiff.

Doctrine of Honest Concurrent User
This doctrine is embodied in Section 12 of TM Act, 1999. It says :
Registration in the case of honest concurrent use, etc.—In the case of honest concurrent use or of other special circumstances which in the opinion of the Registrar, make it proper so to do, he may permit the registration by more than one proprietor of the trade marks which are identical or similar (whether any such trade mark is already registered or not) in respect of the same or similar goods or services, subject to such conditions and limitations, if any, as the Registrar may think fit to impose.

ITM Trust & Ors. V. Educate India Society[18]
When the Plaintiffs came to know about the usage of identical mark by the Defendant in 2010, they sent legal notices denouncing the same. The Defendant claimed that it was using the name "Institute for Technology and Management" since 1996. It also claimed that ITM was an abbreviation over which the Plaintiffs could assert no exclusivity. The Plaintiffs' attorneys' responded with another cease and desist notice. Meanwhile, the Defendant applied for registration of the mark "ITM University" with the logo in class 41, saying that the user was ‘proposed'. The matter finally reached the Bom HC. The court held that:
"I state that the defendant's honesty of adoption of the mark ITM is proved from the factum that the Trade Mark "ITM" is an acronym derived from the first three alphabets of the abbreviated format of its earlier name, "Institute of Technology and Management" when the Defendant was running an affiliated college created in 1995-96, duly approved by the statutory bodies such as the All India Council for Technical Education (AICTE), State Government and the affiliated University.The said acronym, "ITM" has been derived from the first alphabet of each of the words of "Institute of Technology and Management", which is a common practice with respect to educational institutes across the country and is not only peculiar to the defendant.For example, Indian Institute of Technology is called IIT and Indian Institute of Mangement is called IIM….Thus, the defendant is the prior authorized user of the trademark "ITM University".

The objective of the provision is two fold:
1. If there are similar trademarks in the market, directions can be issued to ensure that the consumers do not get confused.

2. Allowing the rival traders their trademarks, as they have carried on their business with them and such marks became distinctive qua such traders. Prior use by third parties of a trademark may throw considerable light on the existence or not of an exclusive ownership claim of a party in respect of that trademark.

These principles were recently upheld by the Division Bench of the Delhi High Court at the interim injunction stage, in Goenka Institute of Education and Research v. Anjani Kumar Goenka & Anr[19]., while quashing the order of Single Judge bench of the same court. It was contented by the appellants that the word ‘Goenka' has been used as trademark even prior to the use by the respondent, who claimed exclusive rights over it in respect of their educational institutions. The appellant asserted that ‘Goenka' being a common surname is per se not distinctive. The respondents had been using the trademark before the appellants started to and had even got the same registered in 2005. They argued that the use of the same name in respect of educational institutions would mislead the public into thinking that the services of defendant are originating from the plaintiffs. The single judge had held in favour of respondents, holding the appellants liable for passing off. It also said that the user of the third person was not relevant to the issue of ownership and allowed injunction in favour of the respondents.

Looking at such cases, it can be inferred that the court weighs public interest and individual rights on different parameters, whose reasoning is not clear and uniform.

When ‘Commercial Interest' takes the lead against ‘Public Interest'

The current era is based on the pillars of globalisation and every law is framed and interpreted in the light of commercial concerns. The same is the case with Trademarks.

The court while deciding the cases related to infringement or passing off, they place individual interest first on grounds of public interest. These two facets are so intricately woven together that any dispute would contain such examinations.

However, when "Commercial Interest" takes the lead against "Public Interest" in trademark cases, following aspects are experienced:
1) Advise the marketing department with regard to the choice of a new trademark.
2) Legal clearance of a new trade mark by conducting searches in the Trademarks Registry and also in the market places with regard to the availability of identical or similar marks in respect of similar goods and services.
3) Submit trademark applications and advise the company to go for registration in a country where the goods are to be exported or sold.
4) Since there is globalization of industry and trade, it is better to seek International protection of the trademarks and other Intellectual Property.
5) Advise the company for proper use of trademarks after obtaining registration in order to avoid the attack on the registered trademarks on the ground of non-use by business competitors.
6) Initiate legal action against the infringes by filing civil suits or criminal complaint against the infringes and dishonest traders.
7) To conduct search and raid the premises when the infringed or spurious goods are being manufactured or marketed with the help of local police personnel after lodging criminal complaint.
8) To maintain individual files for each and every trademark of the company for easy reference.
9) It is better to computerize the Trademarks Department by creating a software for this kind of ' Trademarks Management '.
If the creation of trademark department is not economical one of trademark department is not economical one for any type of organization, then it is better to entrust this task to a Trademark Attorney who should be properly instructed to maintain all particulars and papers with regard to trademarks either on retainer or work-to-work basis.

Position in Europe and USA
USA
Trademarks are distinguishing devices used by businesses to distinguish their goods and services from those produced by others. They are a basic form of intellectual property. This text outlines trademark law as it applies in the United States.

In US, the judicial scrutiny lies in the grounds for infringement which they have framed:
Confusion
Confusion is one of the main grounds for a trademark infringement claim. It can take many forms, but the basic inquiry generally involves the same questions:
1. How strong is the mark being defended?
2. How similar are the products in question?
3. How similar are the marks in question?
4. Have consumers actually been confused?
5. Which marketing channels have been used?
6. How likely is the consumer to exercise care when purchasing the products in question?
7. What was the defendant's intent in selecting the mark?
8. How likely are the product lines to expand? - AMF v. Sleekcraft Boats[20]

Infringement by confusion can involve:
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, trademark 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.

• 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 noninfringing in 1912; in more recent years, such cases have routinely led to findings of infringement.

• 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.

• 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.

• 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.

Dilution
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, another form of infringement. The textbook case of dilution is Eastman Photographic Materials v. Kodak Cycle[21], 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. 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."

Contributory infringement
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.

Europe
Trade mark registration is one of the most effective ways to build and defend a brand. In Europe, trade marks can be registered at national level as a national trade mark or at EU-level as a European Union trade mark. The European Commission continually monitors the trade mark system in the EU to identify ways to improve its effectiveness and accessibility for businesses.

There are two main ways to register a trade mark in the EU. They can either be registered at national level at the industrial property offices of EU countries, or at EU level as a ‘European Union trade mark' (EUTM) at theEuropean Union Intellectual Property Office (EUIPO).

National and EUTMs coexist and are complementary to each other. The same trade mark can be registered at EU and/or national level. The EUTM system consists of one single registration procedure that grants the owner an exclusive right in all 28 EU countries. This dual system meets the requirements of companies of different sizes, markets and geographical presence. National trade marks may be better for small and medium-sized enterprises (SMEs) or local firms who don't need EU-wide protection. The laws governing national trade mark registration in the EU were first harmonised in 1989. The EU trade mark was created in 1994.

In Europe, the trademark cases are dealt with public interest as presiding factor rather than individual rights, while in the USA, individual rights are given much more importance.

The evolvement and shift of the Trademark's motto
With the above investigation, following research questions can be graced with the answers:

Can the legislative intent be ignored by the judiciary with respect to the objective of a codified law (Trademark Law)?
The legislative intent is supreme and hence the judiciary cannot go beyond the text. But it has established various non-exhaustive principles for the functioning of the Trademark law.

2. What are the factors which influenced the objective of Trademark Law?
# Legislative Intent explicit in the codified act;
# Judicial interpretation trends;
# Evolution of technology and the moulding of the trademark law according to such developments;
# Commercial necessities;
# Politicization of the Trademark;
# Conflicting principles relating to well-known trademarks;
# More preference to individual economic rights in comparison to consumer benefit.

3. What would be the consequence of switching the objective of Trademark Law internationally?
On one side, it would benefit the trademark owners to establish nearly a perpetual monopoly over their mark, whereas on the other side, the commercialization of trademarks would increase and public interest would be undermined, especially in cases of well known trademarks.

4. How can the balancing line be established between Public Interest & Brand value protection in the application of Trademark Law at global level?
Brand value and business protection is the primary objective of trademark law because often when a business entity registers a trademark that is not yet famous, there is no underlying public interest in registering that trademark. However, the trademark law still allows for such protection because business protection is the primary object of trademark law and public interest is the beneficial result of that protection but not a primary aim. Again, even for famous and well known trademarks that have lots of consumers, one cannot say that public interest is the primary object because any trade mark can be infringed by the mark owner's own consent.
The core functionality for any business organization remains profit making and it is the main rationale that ought to drive mark owners to get trademark protection. Enabling customers or public to distinguish between different products or services can only be achieved by generating a brand value that is easily recognizable and reliable. Thus, the public interest is a secondary consideration which drives the primary concern of business organization to seek trademark protection by registering their marks, image, logo, sign or name.

Establishing balancing line between ‘Public Interest' and Protection of ‘Brand Value'
From an established firm's perspective, there are many advantages in investing in goodwill rather than in "substance"; reputation rather than innovation, even if the choices are not mutually exclusive. That is something that many firms have recently come to recognize more clearly.

Some other advantages that trade mark rights have over "substantive intellectual property rights" from the perspective of the firm:
# trade marks are flexible: any product within a relatively broad category can be sold under a brand name;
# trade marks can live forever, as long as minimal use is maintained and some other conditions are met;'
# trade mark coverage can more readily be expanded geographically, as brands can be instilled with universal appeal;
# the value of a trade mark increases rather than decreases over time, encouraging brand owners to invest more rather than less in the maintenance and policing of the relevant intellectual property rights, and to become more proactive;
# trade marks mediate between producer and consumer: brands allow products to be coated with a veneer of suggestion; they enable so-called perception advertising, appealing to emotions rather than the consumer as rational maximizer.

On one side of the fence, the value of goodwill has to be protected by the courts but they need to maintain balance between public and commercial interest in such a way that none of the facets are prejudiced. Consumer rights are as much important as the economic rights.

Concluding Remarks
The central rationale behind trademark protection is and ought to be protection of brand value because mark owners should have the right to exploit their mark in any possible way they want. The public interest only plays a secondary role because companies cannot be forced to regulate their products according to the requirements of the public. Businesses ought to make money out of their investment and they ought to exploit their resources in every possible way. Brand value and business protection is the primary objective of trademark law because often when a business entity registers a trademark that is not yet famous, there is no underlying public interest in registering that trademark.

However, the trademark law still allows for such protection because business protection is the primary object of trademark law and public interest is the beneficial result of that protection but not a primary aim.

Bibliography
Books
# Frank Isaac Schechter, "The Historical Foundations of the Law Relating to Trade-marks", 1st Edn (1925), The Lawbook Exchange Ltd.
# Amanda Michaels, "A Practical Guide to Trade Mark Law", 1st Edn(1996), Sweet & Maxwell Publications.
# Mary LaFrance, "Understanding Trademark Law",(2005), Carolina Academic Press
# Ananth Padmanabhan, "Intellectual Property Rights", 1st Edn(2012), Lexis Nexis Publications.
# P. Narayanan, "Intellectual Property Law", 3rd Edn. (2001), Eastern Law House Private Ltd.
# Berthold Singer, "Trade Mark Laws of the World, and Unfair Trade", 1st Edn. (2010), Nabu Press.
# Nuno Pires de Carvalho, "The TRIPS Regime of Trademarks and Designs", 3rd Edn. (2014), Kluwer Law International
# McKenna, MP 2007. "The Normative Foundations of Trademark Law", Notre Dame Law Review, Vol. 82, no. 5.
# P Narayanan, "Law of Trademarks and Passing Off", 6th Edn. (2017), Eastern Law House.

Articles
# Kamal Tulani, "Concept of trade mark under the Trade Marks Act 1999 and the protection of domain names under Indian law", (2001), available at http://www.iflr.com/Article/2027427/Concept-of-trade-mark-under-the-Trade-Marks-Act-1999-and-the-protection-of-domain-names-under-Indian.html
# R. Kapoor, "Trade Mark Law in India", (2011), available at http://www.legalserviceindia.com/trademarkscopyrights/trade%20markmainpage.htm
# Dima Basma, "The Nature, Scope, and Limits of Modern Trademark Protection", (2016), University of Manchester, available at https://www.research.manchester.ac.uk/portal/files/54583181/FULL_TEXT.PDF
# Latha R. Nair, "Tracking the Protection of Well-Known Marks in India: A Befuddled Path to Nirvana?", (2011) Vol. 101 No.5, The Trademark Reporter, International Trademark Association, available at http://www.inta.org/TMR/Documents/Volume%20101/vol101_no5_a1.pdf
# Abhilasha, "Honest Concurrent Use", (2012), available at http://www.lawyersclubindia.com/forum/Honest-concurrent-use-61420.asp#
# "International System of Trademark Protection: An Analysis", (2010), available at http://shodhganga.inflibnet.ac.in/bitstream/10603/68188/10/10_chapter%202.pdf
# Eugenia Baroncelli, Carsten Fink and Beata Smarzynska Javorcik, "The Global Distribution of Trademarks: Some Stylised Facts", (2009), available at http://users.ox.ac.uk/~econ0247/BaroncellietalWE.pdf
# K. Levy, ‘Trademark Parody: A Conflict between Constitutional and Intellectual Property Interests' (2001) 69 Wash.L.Rev. 425, 432.
# M. Willkins, ‘The Neglected Intangible Assets: The Influence of Trademarks on the Rise of Modern Corporation' (1992) 35(1) Bus. His. 66, 82.
# M. McKenna, ‘A Consumer Decision-Making Theory of Trademark Law' (2012) 98 Va.L.Rev. 67.
# W. Fisher, ‘Theories of Intellectual Property, in New Essays in the Legal and Political Theory of Property' in S. Munzer (eds), New Essays in the Legal and Political Theory of Property (CUP, 2001) 168- 193.

Acts
# The Trademarks Act, 1999
# Lanham Act, 1946
# Handbook on European Trademark Law;
# Community Trademark Law and
# European Harmonized Trademark Law

Table of Cases
# AMF v. Sleekcraft Boats [599 F.2d 341 (9th Cir. 1979).]
# Bata India Ltd. v. Pyarelal & Co., Meerut City & Ors [AIR 1985 All. 242]
# Daimler Benz Aktiegessellschaft & Anr. v. Hybo Hindustan [AIR 1994 Del. 239]
# Eastman Photographic Materials v. Kodak Cycle [15 R.P.C. 105 (Eng. 1898)]
# Goenka Institute of Education and Research v. Anjani Kumar Goenka & Anr [FAO (OS) No. 118/2009 (Delhi High Court)]
# Honda Motors Co. Ltd. v. Charanjit Singh & Ors [2003 (26) PTC 1 (Del.)]
# ITM Trust & Ors. V. Educate India Society [SUIT NO. 284 OF 2012]
# Kirloskar Diesel Recon Private Ltd. & Anr. v. Kirloskar Proprietary Ltd. & Ors [AIR 1996 Bom. 149]
# Sunder Parmanand Lalwani & Ors v. Caltex (India) Ltd [AIR 1969 Bom. 24]
# Tata Sons Ltd. v. Manu Kosuri & Ors [90 (2001) DLT 659]
# Yahoo Inc. v. Akash Arora [1999 PTC 201]

End-Notes
[1] * Author is the student of BA.LL.B. (Hons) 6th Semester, Alliance School of Law, Alliance University.
[2] W. Howarth, ‘Are Trademarks Necessary' (1970) 60 TMR 228, 228.
[3] Note that trademarks are not necessarily restricted to goods of highest quality, they are merely designed to assure consumers of consistent quality. For a seminal review of the economic rationale of trademark protection, see Landes and Posner (1997).
[4] Some national legal systems provide for the protection of trademarks by virtue of their use and without registration. However, such legal systems often offer greater protection for trademarks upon registration.
[5] However, the legal process for registering trademarks is similar across countries.
[6] WIPO is the global forum for intellectual property services, policy, cooperation and information. It is established through an international instrument signed in 1967 at Stockholm and entered into force in 1970 with 186 member states.
[7] [90 (2001) DLT 659]
[8] [1999 PTC 201]
[9] K. Levy, ‘Trademark Parody: A Conflict between Constitutional and Intellectual Property Interests' (2001) 69 Wash.L.Rev. 425, 432.
[10] M. Willkins, ‘The Neglected Intangible Assets: The Influence of Trademarks on the Rise of Modern Corporation' (1992) 35(1) Bus. His. 66, 82.
[11] M. McKenna, ‘A Consumer Decision-Making Theory of Trademark Law' (2012) 98 Va.L.Rev. 67.
[12] W. Fisher, ‘Theories of Intellectual Property, in New Essays in the Legal and Political Theory of Property' in S. Munzer (eds), New Essays in the Legal and Political Theory of Property (CUP, 2001) 168- 193.
[13] [AIR 1969 Bom. 24]
[14] [AIR 1985 All. 242]
[15] [AIR 1994 Del. 239]
[16] [AIR 1996 Bom. 149]
[17] [2003 (26) PTC 1 (Del.)]
[18] SUIT NO. 284 OF 2012
[19] FAO (OS) No. 118/2009 (Delhi High Court)
[20] 599 F.2d 341 (9th Cir. 1979).
[21] 15 R.P.C. 105 (Eng. 1898)