WHAT IS TRADEMARK AND ITS PROCEDURE FOR REGISTRATION IN INDIA

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Every intelligent consumer purchases his goods or hires services from the commercial market only when he is satisfied that the goods or services are the one of good quality and reputation, it is in this context that trademarks play pivotal role in the modern commercial market. Trademarks are a quick means of establishing the identity of the industrial property holder before the consumers. A trademark is a visual symbol in the form of word, device or label applied to articles of commerce with a view to indicate to the purchasing public that they are the goods of a particular person as distinguished by the similar goods manufactured or otherwise dealt in by other persons. A person who sells his goods under a particular trademark acquires a sort of limited exclusive rights in respect of those goods, such rights are recognized as a form of property in the trademark and is protected under the Trademark act, 1999 and Trademark rules, 2017.

Trademark must be a mark which include a device, brand, heading, name, signature, word letter, numeral, shape of goods, combination of colors. The mark must be capable of distinguishing the goods or services of one person from those of others and the use must be for the purpose of indicating a connection in the course of trade between the goods or services and the person having the right as proprietor to use the mark.

Examples of Trademark in India-

  • Apple
  • Amazon
  • Mercedes

And many more

ADVANTAGES OF TRADEMARK REGISTRATION

The biggest advantage of registering a trademark is to give indication to the purchaser or possible purchaser about the goods or the services he is going to buy form the market, its gives an indication to his origin of the trade source from which the goods come to the market. Following are the top advantages for registering a trademark:

  • It define the products and its origin
  • It guaranteed its unchanged quality
  • It advertises the product
  • It creates image of the product in the eyes of the public
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WHAT MARKS ARE REGISTERABLE

  • Invented/ arbitrary word
  • Letter/ numerals
  • Symbols
  • Monograms
  • Combination/ Single color
  • 3D Mark
  • Sound/Smell
  • Slogans

 

WHO CAN FILE A TRADEMARK APPLICATION IN INDIA

A person who claims to be the proprietor of the trade mark in relation to goods and /or services may apply for the registration of a Trade Mark.

For the purpose of making an application of Trademarks, “Person” includes:

  • A Natural Person,
  • A Body Incorporate,
  • A Partnership Firm,
  • HUF,
  • Association of Persons (in case of collective Trademarks),
  • A Trust,
  • A Society, or
  • A Government Authority/Undertaking

 

TYPES OF TRADEMARKS

Certification Mark- A certification mark is the one which has been certified by its proprietor or some professional that those goods and services possess certain defined characteristics and gone through a specified standard test to ensure the quality of the product. Certification mark example- Agmark, BIS, hallmark

Service Mark-A service mark is a symbol or design or its combination used to represent the services and distinguishes from other service providers. Example of service mark could be “UNILEX” will be service mark representing the legal and secretarial services it provides.

Collective mark- Collective marks are those which distinguishes one associations of persons, public institutions or corporations from another. For example ICAI, ICSI would be collective marks as they are distinguishing its members from others.

Well- known trademark-These marks are recognized by a large number of public and enjoys greater protection, therefore nobody can register any similar mark to it as it would cause confusion to public at large. Example of well-known trademark would be Reliance, Infosys, wipro etc.

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REGISTRATION PROCEDURE OF TRADEMARK

Registration of a trademark in India can be categorized under the following stages:

Application: With digitization, all the applications filed in the trademark registry offices all across India have been made online and system of physical filing of the trademark application has been completely dispensed with. Under the new Trademark rules, 2017, the application for registration of a trademark has to be filed in the Form TM-A along with the following documents:

  • Power of attorney

  • Affidavit of usage (if the proprietor claims to use the trademark from the previous date)

  • MSME/Startup certificate (If any)

  • NOC (if required)

Examination: Once the application for registration of a trademark had been filed online in the trademark registry then it will be examined by the examiner of trademarks. The mark is examined basically on three grounds i.e. distinctiveness, descriptiveness and similarity to the prior marks. The examination report will then be communicated to each Applicant or Agent or Attorney by quoting objections, if any, for acceptance of the application probably within the time period of 50 to 60 days.

Inquiry : After receipt of Examination Report, a reply is sought by the department form the applicant if the trademark application filed comprises of any objectionable grounds such as distinctiveness, similarity or other grounds mentioned under the act. The reply needed to be drafted carefully giving clarifications on each ground specifically raised in the examination report. Registrar may also ask to remove any discrepancy through form TM-M. In case the registrar is not satisfied with the reply, he may call the applicant for the personal hearing producing documentary evidences during the hearing. Thereafter order will be passed in the application by the registrar.

  • Advertisement : If the application is found to be acceptable, then it will be advertised in the Trade Mark Journal (Official Gazette of the Trade Marks Registry ) to invite opposition, if any, from the public within the prescribed period of four months. Once the mark is advertised in trademark journal, it is open for a period of 4 months for third parties to oppose.

  • Opposition : ( If any ) This stage will arise only in cases when an opposition is filed against the registration of a particular trademark. If there is no opposition, then the mark will be registered.

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DURATION AND RENEWAL OF A TRADEMARK IN INDIA

Trademark in India is registered for the period of 10 years from the date of registration and can be renewed from time to time by paying a renewal fee.

Unilex Consultants

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