What is a trademark?
A trademark is a symbol or logo, which can be a word, phrase, name, font, numbers, words with the color combination, with both word and number, and a combination thereof. A trademark is also a unique symbol or word used by the companies to distinguish its products and services from other same products and services in the market. It is also a type of intellectual property obtained by companies, to be easily recognizable by their customers. A trademark plays a vital role in business expansion and forms as an identity of the company all over the world.
Rules of a trademark
A trademark can be fixed anywhere like, on a package, a label, a voucher, or on the product itself. There is no restriction on placing the trademark. Trademark rights in India are legally protected by the Trademark Act, 1999. The Controller General of Patents, Designs, and Trademarks is responsible for enforcing these rights under this Act. Once the trademark is registered by the company or entity, then it becomes the asset of that company. It cannot be used by any other company. If it is used by another company, that company can be sued for the infringement of the trademark.
Signs of a trademark:
TM - This trademark symbol is used along with the logo for notifying the public that the company has made an application for trademark registration, but has not registered for it and is claiming exclusive ownership over the same.
SM - This refers to a service mark used by the company, which is engaged in providing services, not products. The company does have to option to use either a service mark or a trademark.
® - The letter “R” enclosed in a circle shows that the trademark has been officially granted by the trademark office. Only a trademark that has been successfully registered can use the ® symbol along with the claimed logo of the company.
Benefits of trademark registration to a company
Exclusive rights over the trademark:
- The owner of the registered trademark has exclusive rights over the trademark. He/she is entitled to use the trademark on all the products falling under the same class for which the trademark was applied.
- Similarly, the owner can stop others from unauthorized use of his/her trademark under the same class.
Create trust and goodwill:
- As it is well known, most consumers around the world will rely on the brand name mentioned on products.
- Thus, it helps in creating trust and goodwill in the quality of the products sold to the public.
Differentiation of products:
- It becomes easy for customers to identify products using the brand name. Similarly, it becomes the identity of the product and differentiates it from the other existing competitor products in the market.
- Simply, the trademark is a tool used to communicate to the public about the unique quality of the product of the company.
Protection from infringement:
- The registered trademark is protected under the Trademark Act, 1999 from any type of infringement.
- The owner has a legal right to stop anyone involved in the unauthorized use of his/her trademark.
- In case of unlawful use of a registered trademark, the owner can file a suit in court and ask for compensation for infringement.
Minimum 10 year protection:
- The trademark which is registered in India is valid for 10 years from the date of receipt of the issue of the trademark certificate.
- If you want to make further use of this mark, a renewal fee should be paid for the uninterrupted use of the trademark.
Business expansion to other countries:
- If you wish to use a trademark outside India or extend your business outside India, you need permission or registration of a trademark in the countries where you wish to use it.
- In these cases, the trademark registered in India will serve as a basis for securing trademarks outside India.
Becomes an asset of the company:
- The registered trademark will become an intangible asset of the organization.
- Similarly, the trademark can be sold, assigned, franchised, or commercially contracted for respective years.
- You can recognize the value or cost of trademarks in account books, as well as claim a deduction for depreciation.
Checklist requirements of a trademark registration
- The applicant's name, address, and nationality. If the applicant is a partnership firm, and all the partner’s names are provided. Also, state whether any minor is a partner.
- A complete list of goods and/or services must be stated for which the registration is required.
- If the claimed mark consists of any non-English words, then a proper translation of those words into English is required.
- Before applying for trademark registration, it is necessary to identify the classes in which the goods or products fall under.
- A registered trademark can be removed on the grounds of non-use if it is not continuously used for 5 years.
- The soft copy of the trademark is also to be registered.
- If the proposed trademark is already in use, then mention the date of the first use of the mark.
- Avoid the trademarks, which is confusing and similar to existing trademarks.
- Avoid words that have a direct reference to the quality of the product and service. E.g. best choice, number one, super, etc.
The trademark registration process
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- The first and foremost step of trademark registration is the selection of a unique trademark.
- It is always advisable for the applicant to refer to the trademark registry and ensure that the proposed trademark does not exist or is identical to any other registered mark.
- The search process can be done online, or offline at the trademark registration office.
- Once the search process is over, the application for registration can be made.
- The application for trademark registration should be filled with
- Owner information like name, ID proof, Address proof, etc.
- ID proof of company director for a sole proprietor.
- Company address details
- The proposed “mark” is to be registered.
- The list of all goods and services for which the registration is required.
Filing the application:
- The application can be filed through both online and offline mode
- Offline: In case, if you opt for offline mode, then fill the application and physically hand it over to the registrar of the trademark office.
- It will take around 15-20 days to receive the acknowledgment receipt.
- Online: if you apply through online mode, you will receive the acknowledgment receipt instantly and now you are eligible to use the trademark(™) along with the brand name.
Examination of proposed trademark:
- If the trademark registration application has been made, the Registrar will look for the uniqueness of the name and will review the registered trademarks and pending application to decide if any such trademark exists and to decide the registerability of the proposed trademark as required by law.
- Similarly, the applicant may have a second opportunity to refill the same SPICe form without any additional charges in the event of rejection due to non-approval of the mark. This means you get two chances of filing the same form without being charged Rs. 1000/- both times.
Advertisement of the proposed trademark in the Indian trademark journal:
- The proposed trademark will be advertised in the Indian trademark journal, once the application for registration of a trademark is approved. It will provide an opportunity for the third party to oppose the published trademark.
- If no one objects to the proposed trademark within four months from the date of publication in the Trademark Journal, a certificate of registration of the trademark shall be given within 6 to 10 months.
- However, if the third party objects, the process of obtaining a trademark certificate can be dragged to several more months. Both parties should have the opportunity to be heard. Legal costs will also apply too
Issuance of trademark certificate:
- The registrar will approve your application for a trademark if no opposition is lodged within a period of 90-days.
- You may use the registered trademark symbol (®) alongside your brand name right from the moment you have been issued with your certificate.
- Once the trademark certificate is issued, it is valid for 10 years, subject to renewal beyond that period.
Documents required for the registration of trademark:
In case of Individuals and Sole Proprietorship:
- Copy of the logo, preferably in black & white (if available). If not available, then the trademark application can be filed for the ‘word/s’.
- General Power of Attorney on stamp paper is an authorization from the applicant to a Trademark Agent / Attorney for filing the trademark application on his/her behalf.
- ID Proof of the individual or Proprietor.
- Address Proof of the individual or Proprietor.
- User affidavit on stamp paper is trademark is in use before application
In Case of Partnership/LLP/Company-Small Enterprise or Startups/Others:
- Copy of Logo (if available)
- Power of Attorney on the stamp paper.
- Incorporation Certificate or Partnership Deed.
- ID Proof of the Signatory.
- Address proof of the Signatory
- User affidavit on stamp paper is trademark is in use before application
Yes. Before even starting a company, one can register a trademark.
No. A trademark is territorial which means it would only be valid for India if a trademark is acquired.
- To secure an exclusive right or register a mark.
- Secure a brand name for all company properties and belongings.
- Protects a company’s reputation in the market
- Within the same business field, no other business will be able to sell under the same brand name.
- It will provide security for business across the country.
- No trademark may be registered which is identical or deceptively similar to an existing registered trademark, or trademark for which a registration application has been made.
- It is not appropriate to register trademarks which can cause fraud or misunderstanding or is offensive. Even geographical names, family names, commercial words, and common abbreviations can not be registered as trademarks.
- Registration of trademarks are characteristics of products or services that they cover.
- Registrations are common for products and services and are rendered within a "class" of products or services that it serves.
- Therefore, the registration of a trademark is valid for the entire class of products or services it represents.
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