One June 19, 2017, the Taj Palace Hotel, Mumbai became the first building in India to get a trademark registered for its distinct architecture. The red-tiled Florentine gothic structure has embraced the city of Mumbai since December, 1903; establishing itself as a building of prominence across the globe. This places Taj among the few registered buildings around the globe including the Empire State Building, New York and the Eiffel Tower, Paris.
The Indian Trademarks Act, 1999 defines a trademark as any mark which fulfills the following two conditions-
a.Capable of being represented graphically
b.Capable of distinguishing the goods or services of one person from those of other
The Palace has been represented in the form of graphic images on a number of goods including clothing, souvenirs etc. and has established a distinct status for itself. As stated by Rajendra Misra (VP, IHCL),one look at that property and you know it is the Taj. One doesn’t even need a signboard over there. Thus the image successfully fulfills the pre-requisites under the act and has been granted a trademark under Class 43, i.e“services providing food and drink; temporary accommodation”.
This essentially provides Indian Hotels Company Limited (IHCL), the company that owns Taj complete control over the use, production and distribution of the building’s image. IHCL has the power to do so by i) claiming royalty by anybody who now uses the trademarked image for commercial purposes ii) Obtain relief in the case of trademark infringement
However, this change in the legal status of the building does not restrict its access to the general public in any manner. A tourist continues to enjoy the freedom to use the image for personal purpose and does not restrict its access despite the grant of the trademark rights to IHCL. Section 29 of the Trademarks Act, 1999 states that a registered trademark is said to be infringed when a person not being a registered proprietor or permitted person uses the trademark in the course of trade in a manner likely to deceive general public and cause confusion.
Therefore, an important aspect of trademark infringement is the use of the registered trademark for commercial purposes. A suit of infringement under the act cannot be filed unless the trademark has been used in the course of a trade, thus restricting the rights of the trademark owner.
As a result, one might notice a sharp decline in the local souvenirs and pictures sold around the Palace as an immediate consequence of this change of legal status of the building but it does not in any manner affect the rights of individuals to use it as a personal memoir.