Business across are on the constant lookout for developing niche products or services, generating revenue, exploring marketing strategies and among all the most important one is creating a unique brand image that protects the business identity. Moreover, it seems like almost anything can be trademarked nowadays, whether it is the name of a product, a catchy tagline, all go in for a game.
Now before you jump onto registering one for yours, here are some important things to know about trademark registration.
The Indian Trademark law of 1999 in accordance with the international systems and practices, holds provisions for registration of a trademark that is valid for up to ten years; protection of registered and unregistered trademarks; violation of trademarks under Section 135 whichprovides the relief for trademark infringement or passing off. In order to increase the protection of a brand, the act states that Infringing or replicating a competitor’s mark is an offence and criminal proceedings can be carried out against the infringers under Section 103.
Companies are not mandated to get their trademarks registered, however, it is important to file a case against violation.
Trademark offence is punishable with imprisonment for a term of six months to three years with fine anywhere between Rs 50,000 and Rs 2,00,000.
A suit for infringement is available as a remedy only for registered trademarks, however, the Trademark Act also provides provisions for protection of unregistered trademark under the common law principle of Passing Off. Passing off is another wrongful act that is also enforced on unregistered trademarks and the remedies available are same as that for infringement.
According to the Trademark Act, a trademark cannot be granted to companies or individuals under the following provisions:
The thumb rule is that anything that is not distinct cannot be registered as a trademark. As numerals alone do not have anything unique they cannot qualify to be a trademark.
Ofourse a colourful design looks more appealing but only colours cannot be a brand of a company. A variety of hues can go into designing a logo and be registered, provided it is not similar to any other entity.
If an individual or a business is in the music field, they would opt for a musical note as their logo. Musical notations are also accepted. However, traditional trademarks are related to words and symbols, companies as a way of sustaining in the cutthroat competition are seeking a distinctive framework. Sound marking a jingle or a chime is also legal as per the Trademark Rules 2017 of India. For example, the National Stock Exchange, Mumbai, registered their theme song as a sound mark.
A mark that is deceitful to the public, or that which hurts the religious sentiments of a person or a particular sector of people will be rejected. Any obscene or scandalous marks cannot be filed for a trademark.
This is an important step that shouldn’t be skipped before applying for a trademark as now two entities can have a similar one. The proposed trademark can either be searched in the Trademark Public search database maintained by the government's Intellectual Property India website or on the website of a professional service provider.
All trademarks are categorized according to their classes and types, whether it is a word mark, or a Vienna code or phonetic. It is recommended to take assistance from reputed trademark agents who are much aware of the process and ensure a comprehensive search for your mark.
The trademark rights start at once a trademark is registered for commercial use. The parties of protected marks enjoy the sole ownership of their brand; bring an win infringement case to the court of law; gains legal recognition; attract more customers and so on.
It is likely for the Indian Trademark Registry to object a mark if it is too generic, descriptive of its goods or services and not fulfils the nature of distinctiveness. In such cases, the applicant has to prove that the proposed trademark is inherently distinct by way of submitting a user affidavit and cogent evidence. The response has to be filed within a month from the date of receiving the trademark examination report.
To make trademark registration easy and a simple process, it is advised to take consultation from a certified, trademark attorney or trademark agent who is up to date with the latest amendments in the law. They can also guide throughout this complex process without the applicant having to often visit the government websites or follow up with the authorities.
Read this article to know trademark eligibility and understand what is trademark