A trademark is a nonidentical symbol, word(s) used to represent a business or its products. It’s a type of intellectual property combination of recognizable sign, logo, word, or words that define or expresses the business or products and legally differentiates from all other products of its kind.
In accordance with the Trade Mark Act 1999, section 2(ZB) Trademarks means a mark capable of being graphically depicted and capable of distinguishing one person's products or services from those of others which may include the shape of products, their packaging and the combination of colours.
A trademark may be defined as the unique identity which distinguishes your product or service from the rest. A logo, image, slogan, word, the combination of colors, or graphics may be the specific identity or expression. Many companies typically search only for a logo or name registration. If you've come up with a new idea or logo so patenting it is the only way you can protect it as your own unique identity. A registered trademark is intellectual property or intangible asset of your company. It acts as a protective cover for the investment that the company makes in the logo or brand.
The registration provides the right to sue those who try to copy your trademark. And no one else can use a trademark identical to another person's registered one. You will use an “R” symbol for it until you file a trademark and it will be valid for up to 10 years from the date of registration. Within 3 days you can easily obtain a TM. But, it takes up to 2 years to get ®.
Who can apply for trademark registration:
If it's a word it should be easy to pronounce, spell, and remember. The best trademarks are invented words or coined words or unique geometrical designs. One should avoid the selection of a geographical name, common personal name, or surname. No one can have a monopoly right on it. Avoid adopting admiring words or words that describe the standard of products (such as best, perfect, super, etc.).
It is advisable to conduct a market survey to determine if the same/similar mark is employed in the market. It is also advisable to thoroughly search the trademark registry before choosing one.
A registered trademark gives your business or product brand recognition, which helps customers to recognize and remember your brand quickly. The registration of a trademark means rivals can not use it and thus remains the exclusive asset for a client.
? Attract customers
A registered trademark is helpful in attracting customers form the market, as your registered mark will give the customer a brand satisfaction and recognition of your product.
? Provide Legal protection
Registration of a trademark offers legal protection against any kind of abuse, including infringement or copy of the name or logo of a product, which is often the most valuable asset of a business. It gives the trademark owner exclusive national possession of the trademark which can be legitimately enforced in any part of the world by the courts of law.
? An intangible property
A registered trademark is an intangible asset for a company as it helps to create further sales and helps attract and retain consumers through awareness of the name.
It also gives the company a legal right to use a logo with the ability to re-register exclusively for 10 years.
? Provides exclusive right
The registration of a mark gives the proprietor of the mark the right to make the mark exclusive and incontestable and use it in a variety of media. This would be of significant benefit to prove the authenticity of the label and the in case of possession by the registrants of any third party infringement.
Process of Trademark registration
Step 1. Search for the trademark availability
The first step is to search for the trademark whether that trade name is available or not. We will search your trade name availability and suggest whether you will get your name registered or not or in which way you will get.
Step-2. Classification of the class of proposed trademark
We will help you to classify your class of trademark, we will suggest you that in which class you can register your trademark
Step-3. Drafting of documents for registration
In this affidavit, the trademark owner will confirm that the proposed trademark is owned by him/her and is going to use this mark or already using this mark. And this Affidavit will be stamped and signed by the notary.
This attorney will be drafted in favor of our trademark agent, under which the owner will provide power to our agent for filing the trademark and processing the registration.
Step-4. Signing and notarizing of drafted documents
The drafts must be duly signed by the owner of the trademark and printed on the stamp (generally on INR 20 & 50 respectively) and should be notarized by a notary
Step-5. Filing of correct trademark form
If the request is not made using the appropriate form the examiner will pose an objection. For example, Form TM-4 is structured to register collective marks for goods and services in any one class. Form TM-51 to register a trademark under the different groups of goods and services.
If the application for a mark fails to briefly describe the company's goods and services, it is highly likely that the Trademark Examiner may reject the application because of the vague details.
Step-6. Clarification of objection if any objection received
If the department will seek any clarification or explanation on registering this proposed trademark then, our trademark agent will provide the explanation to the department on your behalf or be present in the department on your behalf if required.
Documents required for Trademark registration
? PAN and Adhar of owner/ director/partner
? Brand Name
? Logo (in JPEG form)
? Address of the business location
? Documentary proof of trademark in commercial use (if it has been already in use)
? Application for trademark registration:
If the application for registration of the trademark is filed with the registrar of the trademark, within one or two working days a trademark application allotment number is issued. The application can then be tracked electronically via the online search facility for trademarks. The trademark owner can affix the TM symbol next to the logo upon obtaining the allotment number.
? Vienna codification verification
This is a part of the licensing process for trademarks. If the mark includes figurative elements or logo, then all these applications must be handled under the codification of Vienna. It is assigned a Vienna code as provided for in the Vienna Agreement. This helps to search the trademark for a logo for internal use. Since it is the Ministry's internal practice it takes about 3-5 working days.
? Examination of Trademark and Trademark Application
The trademark officer will then review the correctness of the trademark application and submit a mark review report. The officer will verify whether all the information is entered correctly or not and the attached documents are appropriate or not. The officer will either approve if the application and allow the publication of the journal or object to the same.
? Objection and clarification
Ministry here compares the trademark to other applications and registered trademarks. When it is found to be identical to some other brand name or logo then an objection is raised by the ministry.
If the trademark is under Objection then the response to the objection must be sent to the ministry within 30 days of receipt of such examination report. If in such a time the applicant fails to file the reply, the trademark will be abandoned.
? Objection Hearing
The applicant may either file a reply to the objection or may request a meeting with the officer in the event of an objection raised by the ministry. In addition, if the examiner needs further clarification or is not pleased with the response to the objection then the officer must schedule a hearing before refusing the appeal.
? Publication in Journal
If the registrar approves the trademark application, the proposed trademark will be published in the trademark journal. The trademark journal is published regularly and includes all the trademarks that the registrar has approved. Upon release, the public may object to a particular registration. When no appeals are lodged within 90 days of the release, usually the mark will be reported within 12 weeks.
If a third party objects to the trademark registration application, the trademark hearing officer may call for a hearing. Both the applicant and the opponent have the opportunity to appear at the hearing to provide reasons for approval or rejection of the application for a trademark.
? Grant of registration:
The trademark manuscript and trademark registration certificate will be issued if there are no objections or opposition to the submission. When a trademark registration certificate is issued, the trademark is deemed to be the owner's registered trademark, which gives the owner exclusive use of the trademark. May now every symbol next to the logo.
Registration of trademark took at least a year to get complete.
Step1. Analysis of raised trademark objection
The first step includes carefully examining and researching the objection since any confusion of interpretation can result in the incorrect filing of Trademark Objection Response.
Ste2. Drafting response for raised objection
The next move is to draft a reply to the trademark which will contain the following:-
Step3. Hearing
If the response is approved, the application for registration and advertising in the Trademark Journal will be further processed. If it is not approved, or further clarifications are requested by the Trademark Examiner, a trademark hearing will be held and the same would be informed with a note.
Step4. Publication in journals
Whether the result is successful at the hearing the label will be approved and ordered to be published in the Trademark Journal.
The Refusal Order shall be issued in the event of a negative result, stating the reason for the refusal. The applicant will also have the right to appeal the decision by filing a petition for review within 30 days of the date of the refusal decision stating the ground on which order must be reviewed.
Step5. Grant of registration
After the trademark has been released in the Trademark Journal, it will be subject to review for a four-month period. If no opposition from a third party is lodged during that time, the mark will then proceed towards registration and the certification of registration will be released. When an appeal is lodged the opposition proceedings must take place in compliance with the law's established rules.
The registered trademark owner has complete control of the trademark and nobody can use the trademark except his approval. Someone's use of the logo without the registered owner's permission is a violation of the rights attached to the mark. It also infringes the use of a trademark which is identical or similar to the registered trademark because buyers of that products or services are confused.
Trademark owner can file suit against that user under:
The Trademarks Acts, 1999 makes passing or using a similar trademark a cognizable offense that means police can file an FIR (First Information Report) and personally prosecute offenders. Section 103 and section 104 also prescribe jail terms of 6 months to 3 years with a minimum fine of Rs. 50,000 and a maximum fine of Rs. 2,00,000. If the person is found again in the case of trademark infringement, under section 105 the punishment is increased to a minimum imprisonment of 1 year to 3 years along with a fixed monetary fine of Rs. 1,00,000 which may extend to Rs.2,00,000.