A trademark in intellectual property serves as a unique identifier for a brand’s products or services, setting them apart from competitors. It protects brand names, logos, and symbols, preventing unauthorised use and misuse. This blog explores how trademarks contribute to a business’s reputation, strengthen legal protection, and enhance market value.
What is Trademark in Intellectual Property
A trademark is a unique identifier in intellectual property that protects brand elements, such as names, logos, and slogans, distinguishing a business’s products or services from others. By securing a trademark, companies safeguard their reputation and brand identity, preventing misuse and enhancing recognition in competitive markets.
They can range from corporate logos to a certain slogan or the name itself of a product’s brand. Similar to a trademark, a service mark identifies and distinguishes the source of a service, as opposed to a tangible product, although the term trademark is often used to refer to both trademarks and service marks.
This means to prevent others from using products or services of a company or an individual without their consent. Trademark laws prohibit any marks that are likely to cause confusion with the existence of another mark. Thus, a business cannot make use of a symbol or brand name if it resembles the look or sound, or has a similar meaning, to one that’s already on the books-especially if the products or services are related.
Definition of a Trademark
A trademark is a word, name, symbol or device used to identify and distinguish goods and/or services from those of others. Trademarks also show the origin of the goods, even if that origin is unknown to the consumer. In modern times, when one is a consumer, he or she will never know the manufacturer personally whereas before the industrial revolution, there were hardly any manufacturers, and so everybody used to know the manufacturer personally.
Examples of Trademarks
Common examples include brand names like ‘Nike,’ logos, such as the apple symbol of Apple, and distinctive taglines like ‘Just Do It.’ Sounds, colours, and unique shapes of packaging can be trademarks when used and associated with a business. These help create an impression that makes them easy to identify among the other products or services being sold. The company has also protected it legally against the imitation of other parties.
Key Characteristics of a Trademark
A trademark is a very strong tool in intellectual property that allows businesses to differentiate their products or services from others. It not only creates brand identity but also gives the business essential legal protection, maintaining the reputation of the company and preventing the unauthorised use of its brand elements. Some of the main characteristics of a trademark are as follows:
Identifiable and Distinctive: It has to be unique and unique, with the ability to distinguish a brand from other related products in the marketplace. The notion of distinctiveness allows consumers to associate their trademarked products with that specific brand, creating trust and loyalty towards that specific brand.
Exclusive rights: Registered trademarks give the owner exclusive rights to use it on those goods or services and prevent any other person from using similar identification features likely to confuse them.
Legal protection: Legally, trademarks protect businesses against unauthorised use or imitation; this preserves the integrity of a brand and prevents confusion in the market.
Renewable: Trademarks are renewable-a process, usually done every 10 years-and with this, a business can have perpetual ownership of their brand symbols if they continue to make usage and renewal of the trademark.
Types of Trademarks
A trademark can encompass a wide range of elements that help consumers distinguish and identify products and services. There are different types based on the unique identifiers they protect. Here’s a look at the main types of trademarks that can be registered:
Service Mark: Like a trademark, a service mark is the source identifier for a service rather than a product. It relates to services such as hospitality, logistics, or finance, where the brand name or symbol acts as a service identifier.
Examples: McDonald’s golden arches, Nike’s ‘Just Do It.’
Certification Mark: A certification mark is one that may be used by one party to certify quality, origin, or specific attributes for a product or service.
Examples: Star ratings on appliances, ‘India Organic’ certificate for farm products.
Collective Mark: A mark adopted by the members of a group or association to indicate membership in, and identity with, the group or association whose members use such mark. Collective marks may be trade or service marks or membership marks.
Examples: CA mark of Chartered Accountants, symbol for Rotary Club membership.
Trade Dress: Trade dress is the visual look or package of the product that the consumer connects with a brand. It protects the unique shape, color, or style of packaging and design associated with the brand.
Examples: Red sole of Christian Louboutin, the grille of Rolls-Royce.
Non-Traditional Trademarks: Trademarks extend to elements beyond the conventional names and logos. Some of the non-conventional ones include:
Wordmark: A distinctive word or words standing alone to identify a brand.
Examples: FedEx, Coca-Cola.
Lettermark: Letters or abbreviations are used as a sign of the brand name, often in recognizable shapes.
Examples: NASA, Chanel’s interlocking C’s.
Logomark: It is a sign without lettering, symbolising the brand visually.
Examples: Apple’s bitten apple.
Combination Mark: A mix of both symbol and lettering to build a strong brand identity.
Examples: Adidas logo, Wikipedia’s globe symbol.
Color Mark: The particular color or combination of colors that defines a brand.
Examples: Tiffany Blue.
Shape Mark: The distinct shape of the product related to the brand.
Examples: Corn Flake’s corn shape, Toblerone’s Swiss Alps.
Examples: include Coca-Cola bottle, Toblerone chocolate.
Motion Mark: Registered or trademarked animation of videos that are part and parcel of the brand
Examples: Nokia’s handshaking animation, mountain scene in Paramount Pictures.
Sound Mark: Identification of the brand via any other sound, it is possible to identify this kind of brand via the usage of jingles, and tones.
Examples: NBC chimes, signature Intel jingle.
How to Register a Trademark
Here’s how one goes about registering a trademark in step-by-step action.
Step 1: Conduct a Trademark Search
You can search for registered trademarks on the Indian Trademark Registry website, free of charge. However, this will not reveal a trademark that has not yet been registered. Professional and full searches are carried out by a trademark attorney: They would undertake common law rights searches which involve checking unregistered rights in the trademark as well.
- Trademark representation (logo, word mark, or combination)
- Specification of goods and services with regard to which the trade mark is proposed to be registered
- Declaration of genuineness and non-collision
Step 2: Apply Online
Apply online on the Indian Trademark Registry website.
Step 3: Application Examined by the Trademark Office
A scrutiny of the application for compliance with the requirement of the Trademark Act and Rules, 2017. The applicant will raise objections if the trademark:
- Is identical or deceptively similar to a trademark already in existence
- Is descriptive or generic
- Is against public order or morality
In case there is objection, you need to reply to that within a timeframe specified for the purpose.
Stage 4: Publication and Opposition Period
After the application has been successful, the trademark gets published in the Trademark Journal. Any third party, who opposes registering that mark, can then within a specified time period file an opposition. Provided an opposition is filed, you’ll need to reply in writing to the opponent’s arguments
Step 5: Registration and Issuance of Certificate
In case of no opposition or successful opposition, the trademark is registered. The trademark registry issues a certificate of registration which will establish your absolute rights to the trademark
Step 6: Keep Alive and Renew the Trademark
Keep the trademark active by renewal after every 10 years. Continuous usage is a prerequisite for its survival. Keeping record of usage shall also establish the continued use.
Additional Considerations
- Trademark Attorney: It will facilitate the process and increase the chances of successful registration.
- International Registration: When the mark is to be used in a number of countries, then international application under Madrid Protocol is filed.
- Trademark Enforcement: The owner has to constantly watch the market for infringements and must take suitable legal action if it is warranted.
These are the steps and, if need be, advice from the professional to follow in registering and protecting your trademark.
Five Benefits of Trademark Protection
Trademark protection provides businesses with powerful advantages that extend beyond brand recognition. Five key benefits include:
- Exclusive Rights and Control: Trademarks grant the owner exclusive rights, allowing complete control over the use of the mark, which prevents competitors from using similar identifiers.
- Brand Recognition and Loyalty: A distinctive trademark enhances brand recognition, making it easier for consumers to identify and trust the brand, fostering customer loyalty over time.
- Legal Recourse Against Infringement: Trademark protection provides the legal means to take action against unauthorised use or imitation, helping to maintain brand integrity and protect business interests.
- Asset Creation and Monetization: Trademarks are valuable assets that can be bought, sold, or licensed, offering additional revenue streams and increasing the brand’s overall worth.
- Global Expansion Opportunities: Trademarks registered in multiple countries allow brands to expand globally, as international trademark protection helps secure brand identity in diverse markets.
Trademark vs. Other Forms of Intellectual Property
Trademarks protect distinctive symbols, words, or designs that identify and distinguish goods and services, ensuring brand recognition and consumer trust. Unlike patents, which cover inventions, or copyrights, which protect original works of authorship, trademarks focus on brand identity and the prevention of consumer confusion in the marketplace. Here is a detailed outline of the same:
| Intellectual Property Type | Copyright | Patents | Trademark | Trade Secret | Design Rights |
| What’s Protected? | Original works of authorship, such as books, music, art, films, and other creative works. | Inventions, such as processes, machines, or chemical compositions. | Identifying words, phrases, symbols, and designs distinguishing goods/services. | Confidential business information like formulas, processes, and practices. | Unique aesthetic aspects or visual designs of products or packaging. |
| Requirements to be Protected | Must be original, creative, and fixed in a tangible form. | Must be novel, useful, and non-obvious. | Must be distinctive, capable of identifying a source. | Must offer economic benefit due to its secrecy and be protected through efforts to maintain confidentiality. | Design must be original and have aesthetic appeal, not be solely functional. |
| Term of Protection | Author’s life + 70 years (varies by jurisdiction). | 20 years, non-renewable. | Indefinite, as long as the mark is used in commerce. | Indefinite, as long as secrecy is maintained. | Varies by jurisdiction, typically 10-25 years. |
| Rights Granted | Control over reproduction, distribution, and display of works. | Exclusive right to make, use, sell, or import the invention. | Exclusive right to use the mark and prevent consumer confusion. | Right to prevent misappropriation, unauthorised use, or disclosure. | Exclusive right to prevent unauthorised copying or imitation of the design. |
Global Trademark Protection
The Madrid Protocol, adopted on 27 June 1989, makes international trademark registration simple. India joined this system by amending the Trademarks Act, 1999, and introduced the international registration system on 21 September 2010.
WIPO Registration
The World Intellectual Property Organization (WIPO) promotes global intellectual property rights and administers the Madrid System. WIPO registration streamlines the process, allowing businesses to enhance their trademark protection and navigate legal complexities in member countries effectively.
Madrid System
The Madrid System provides a cost-effective way to file and manage trademarks worldwide through a single application, covering up to 131 countries. This centralized approach simplifies the registration process, making it ideal for businesses of all sizes, from startups to multinationals.
International Trademark Registration Process
- Trademark Search: Conduct a search using WIPO’s Global Brand Database to avoid conflicts in target countries.
- Filing Application: Submit form MM2(E) electronically to the Indian Registrar of Trademarks, paying the necessary processing fee.
- WIPO Examination: WIPO reviews the application. Upon approval, it enters the International Register and is published in the WIPO Gazette.
- Notification and Review: The applicant’s member country notifies WIPO, which then follows the country’s trademark laws. Reports of acceptance or refusal are provided within 12-18 months.
- Opposition: Any objections are resolved directly between the applicant and the opposing country through WIPO.
- Registration: Upon acceptance, the trademark is registered for ten years, with certification issued to the applicant in designated member countries.
Conclusion
Securing your trademark will provide protection for your brand to ensure a unique identity within the marketplace. A trademark not only serves to set your products or services aside from others in the same industry but also is something of value; it has the potential to increase credibility and reputation of your business.
Vakilsearch provides expert support throughout the trademark registration process, right from the search of your trademark to its final registration. Our team ensures that your application is prepared and filed with all the precautions to avoid rejection and delays. We also provide insight into the best strategies to protect your trademark on an international level through the Madrid Protocol for international registration.
