Trademark Restoration

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A trademark is a name, word, device, a short phrase or a symbol which is used in trade with goods to distinguish from others and also to indicate the source of the goods. Trademark rights are generally used to help prevent others from using a similar mark, but this doesn’t prevent them from making or selling the same goods under a different mark. Trademarks used in foreign or interstate commerce are registered with the Patent and Trademark Office. Any illegal use of the trademark by any other company, gives the right to legal action by the authorized company – thus making a trademark of a company one of the most important feature.

A trademark is mostly important for a new product or a new company. Most entrepreneur or companies very often invest a great deal of money and time before the launching of a new product or a new company. The most unpleasant thing to happen during the launch of a new product or a new company is the fact that their trademark is too similar or worse same as another product or company. This could cause a lot of confusion in the mind of the consumer.

Once a new company is formed, it should register its trademark with the Registrar. This is valid for ten years only. Hence, to retain its trademark rights after the ten years of validity, a company must renew it from time to time. The Trademark renewal will help in the preservation of the right and all the protection that comes with it.

The Trademark renewal process should begin six months before the expiration of the validation period. If the company does not apply for the renewal process, the Registrar sends the company a notice 1-3 months before the expiration date. The company that does not apply for the renewal process with the renewal fees within this period or until after the expiry, loses its trademark and bears the adverse effects. If the period to renew the trademark registration has lapsed, then a company can apply for the restoration of the trademark. But, this restoration application has to be made six months to one year from the expiration date.

Requirements of trademark restoration

 

  • Form TM-12: This application is filled when the renewal process is within the timeline. There are no surcharge fee required.
  • Form TM-10: This application is filled when the renewal process is done within the six months before the expiration date. In this case a renewal fees is applicable.
  • Form TM-13: This application is to be filled when the trademark is removed from the register of trademarks. The renewal and the restoration process will take place six months to one year after the expiration date of the registration and both the renewal and the restoration fees is levied to the applicant.

FAQs

Q. For how long will the renewal of a trademark registration be valid?

The renewal of a trademark extends the validity of right and protection over the trademark for another ten years. To extend its validity further, the company has to follow the renewal process at least six months prior to its expiration date.

Q. What happens if one fails to follow the renewal of the trademark?

The following effects could take place if one fails to renew the trademark:

  • The Registrar will remove the trademark from the register of the trademarks, making the trademark available to any use by any other company.
  • This may affect the legal rights and exclusivity, making the owner vulnerable to any violation
  • The company can no longer be protected by the infringement claims

Q. How long do trademark rights last?

A trademark that is active last indefinitely. The key to that is that the owner must continue to use it for the trademark to remain valid.  The ownership or the property rights of the trademarks depends upon the continued and active usage and not essentially secured by a contract or any other agreement.

Q. What Do Trademarks Protect?

Trademarks protect the consumers from being misled. They guarantee free competition by protecting the goodwill of the body that owns the mark. Unlike the copyrights that deals with the marketplace of expressive ideas, the trademarks deal with the marketplace of the goods and services.

The trademark represents goodwill of a business or a particular producer or manufacturer.  The Trademark symbols provide a powerful source-identifying cues that permit us to make a value judgment about the quality of certain goods before they are sampled them.

Q. How are Trademarks Lost?

A trademark could be lost through an abandonment, dilution or common use. If any other party can prove that an owner has the intention to abandon a trademark, the trademark can be considered abandoned. If an individual or a company looking to challenge a mark can prove that it has not been actively used for a period of around three years or more, it is adequate to cancel a federal trademark registration on grounds of abandonment.

A Trademark right could also be lost through dilution.  A dilution happens when the competitors adopt a similar trademark and the trademark holder does not take any action to defend his or her mark. Another means of losing the trademark right occurs through a common use. This is a double-edged gift of popularity–when a trademark becomes recognised with a particular good it becomes the generic term for that particular good.

Q. How are the Trademark Rights earned?

The Trademarks are earned and not born. They come into existence through actual use.  The Trademarks are an alliance of the law and marketing. If there are no previous rights attached to a name, phrase, design or a logo, one may be able to asset the trademark rights in that particular. The first person to use a word, or symbol in connection with sale of the goods or services may across state lines. The trademarks are protected under the federal and state laws. One does not have to register a trademark to have it protected, though there are advantages in doing so.

Q. Is there a danger of a trademark becoming generic?

Yes, there is always a danger that a trademark may become generic. A trademark can become generic when it loses its uniqueness. Typically, this means that it is being used so much every day that it loses the special qualities that made it worthy of being a trademark in the first place. There are legal significance and consequences when a trademark becomes generic.

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A lawyer with 14 years' experience, Vikram has worked with several well-known corporate law firms before joining Vakilsearch.

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