Trademarking helps in protecting the name, ideas, reputation, etc. of a brand. A trademark allows you to take legal steps in case the trademark is being used by a third-party without your approval.
What is a Trademark?
A trademark is a sign, symbol, or phrase that is used to denote a particular product or service. It helps in legally differentiating the product or service from all other products. A trademark serves as an exclusive identity for a product or a service which is specific to a company. It also acts as a recognition of the company’s ownership of that brand. A product with a trademark is considered as a property of the respective company.
What are the things that can be registered under trademark?The process of trademarking has become very convenient and easily accessible in India. As per the trademark laws any of the things mentioned below, or a combination of these can be registered under a trademark:
- A letter
- A word
- A number
- A phrase
- A graphic content
- A logo
- A sound mark
- A smell
- A mix of colours
- A slogan
Why do you need Trademark? What are its advantages?
There are manifold advantages of a trademark. These advantages may be summed up as follows:
- Exclusive rights: The owner of a registered trademark will be able to enjoy the exclusive rights over the trademark. The same trademark can be used by the owner for all the products that fall under the same class(es). Having the exclusive rights on the product also allows the owner to prevent any kind of unauthorised use of the trademarked item.
- Recognition of the company: Having a trademark makes it easier for the prospective customers to recognise the company easily. The brand gets known easily.
- Differentiating products: Trademarking helps the consumers to find out about the products easily. They can easily differentiate between the different kind of products as the products tend to make an identity for themselves.
- Building trust and goodwill: The quality of the products or services will help the company gain some loyal customers. A trademark will establish it in a better way among all the customers in the market.
- Boosting sales: The customers of a company attach the name of the brand to the quality of the product or service that they provide. This image of the product is spread in the market and thus, it helps to boost the sales by attracting more and more customers towards the product.
- Using the registered symbol: The company can use the registered symbol (®) once the trademark is registered. The logo is an indication of the fact that the trademark is already registered and cannot be used by another individual or another company. In case of unauthorised usage, the person who owns the trademark can choose to sue the other party.
- Creation of an intangible asset: Registering a trademark makes it an intangible asset which can be sold, franchised, assigned, or commercially contracted. A trademark is an intellectual property for the organisation.
- Infringement protection: Registering a trademark ensures the trademarked object is not used unethically by any other organisation or person. Nevertheless, if the trademark is used by a third-party without the consent or approval of the owner of the trademark, the owner can seek legal protection against the act and even sue the person (or the organisation) who made a deceptive usage of the trademark.
- Applying for global registration of trademark: If a person or organisation wants to expand outside India and register a trademark outside the country, he/she can use the trademark registered in India as a basis of registration outside India.
How to register a trademark for a brand name in India?
Registering a trademark has become very convenient. In order to register a trademark for a brand name, the following steps are to be followed:
- Selection of name: It is very important to choose a name which will not face any issues while getting it registered for a trademark. The applicant can look up the internet in order to find a suitable name (in case of a new company). The name has to be catchy and eccentric to some extent, which makes it easily noticeable and easy to remember. There are high chances that most of the generic names will be already taken and in order to avoid a clash, it is advisable to choose a name which is off the track.
- Trademark search: Once the name has been chosen, it is better to run a trademark search to find out if the name that the applicant has chosen is already registered as a trademark. If the same name or a name similar to the one that has been chosen for registration is found in the trademark database, the name cannot be used. One can visit the official Trademark Registrar website in order to run a trademark search.
Filing an application for trademark registration: Once the trademark search is done, the applicant can proceed towards filing the application for the registration with the Trademark Registrar. The application must be made along with the prescribed fee for registration. The following information should be present in the registration application:
- Logo or the Trademark
- The name of the trademark owner along with his complete address
- Trademark class or classification
- The date since when the trademark is being used
- Description of the goods or services provided by the organisation
The following documents are to be submitted at the time of filing the application:
- Proof of registration of the business: Based on the type of registration of the business, the identity proof(s) of the director(s) of the company along with an address proof has to be submitted at the time of making the application. The proprietor’s government registered photo ID proof (like PAN card, Aadhaar card, etc.) can be submitted in case of sole proprietorship business. In case of a company, the company’s address proof (like lease or rent agreement) has to be submitted.
- Soft copy of the trademark.
- Applicant’s duly-signed power of attorney.
- The applicable proof of claim.
- Allotment of the trademark application: After the filing of the trademark registration application, a unique trademark application allotment number is generated. Once the trademark application allotment number is available, the trademark owner can use the trademark symbol (™) after the logo or name.
- Scrutiny of the brand name application: The Registrar will scrutinise the name to make sure that the name is compliant with the terms and conditions as per the law. The name should not clash with any existing trademark. It should also not be identical to any name which is up for registration.
- Indian Trade Mark journal publication: If the name passes through the inspection, it will be published in the Indian Trade Mark Journal. After the publication of the name in the journal, a time period of 90 days (in certain cases it is 120 days) is allotted for opposition. If no objection is raised against the name within the allotted time period, the brand name proceeds towards acceptance.
- Issuance of the trademark registration certificate: If no objection is raised against the name within the stipulated time period, the name is to be processed and the Registrar will issue the Registration Certificate duly signed and sealed by the Trademark Registry. The owner of the trademark can use the registered trademark logo (®) beside the name from the date of inception of the certificate itself.
Frequently asked questions (FAQs):
Can a trademark be registered before starting a business?
Yes, a trademark can be registered even before the business starts.
What is NICE classification?
For the purpose of categorising the different classes of products and services, an international system is followed. The classification helps in the purpose of ascertaining the eligibility of a product for trademark registration. This international system is known as the NICE classification or NCL.
How many classes are enrolled under the NICE classification or NCL?
In total, there are 45 classes of products and services under NICE classification or NCL. Out of them, classes 1 through 34 are assigned for products and classes 35 through 45 are assigned for services.
What is the validity period of a Trademark Registration Certificate in India?
A Trademark Registration Certificate is valid for 10 years from the date when the application for registration is filed. The owner of the trademark can further renew the registration after the validity period is over.
When can the owner of a trademark start using the trademark (™) symbol?
The owner of the trademark can start using the trademark (™) symbol as soon as the application for registration of trademark is filed.
When can the owner of a trademark start using the registered (®) symbol?
The owner of the trademark can start using the registered (®) symbol only after the trademark registration certificate is issued. The owner will be allowed to use the registered symbol (®) only for the goods and services that are mentioned in the certificate.
Can the owner of a trademark register it as a global trademark?
No, a global trademark cannot be obtained. A trademark is based on geographical location or territory. Hence, if the owner gets a trademark registered in India, it is valid only in India. Although based on the Indian Trademark Registration Certificate, the owner can apply for a trademark registration outside India.
Is it compulsory to have a digital signature in order to register a trademark?
Yes, it is mandated by the authorities. An applicant should have a valid Class III digital signature in order to proceed with the documentation process of trademark registration.
What is the meaning of trademark infringement?
The unauthorised usage of a trademark by a third-party which causes deception or confusion is called a trademark infringement.
What are the types of trademarks that cannot be registered?
A trademark cannot be registered for the following cases:
- A trademark which is identical to an existing trademark
- A trademark which is identical to another trademark for which an application has been filed
- Geographical names
- Common names
- Common trade words
- Common abbreviations
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