Trademark is an Intellectual Property which provides a distinguishing identity to any product or service. Registration of Trademark is highly imperative to protect the identity of your business. A Trademark can be registered on brand's logo, tagline, product shape and packaging, sound, fragrance, colour combinations, and anything else that gives it a distinct identity.
In India, matters related to ownership, registration, renewal, and infringement of Trademark are governed by The Trademark Act, 1999. After registration of Trademark the owner can use ® symbol, which means the Trademark is registered. For unregistered trademarks ™ is used.
Eligibility for Registration of Trademarks: The following Natural and Juridical personalities are eligible for Trademark Registration, however there are some differences in the application procedure for each entity:
Individuals: An individual may obtain a Trademark registration in his own name for his /her existing business and also for any business that is intended to be setup in foreseeable future.
Joint Owners: Two or more individuals may obtain a Trademark registration jointly. The Trademark registration certificate will display the names of all the joint owners.
Proprietorship Firm: A proprietorship firm can obtain Trademark Registration under the firm name and also jointly with the owner of the firm. The registration can also be obtained in the name of the owner of the firm individually.
Partnership Firm: A Partnership Firm can make the application for Trademark Registration by entering the name of all the Partners in application form, with a maximum limit of 10 names.
Limited Liability Partnership (LLP): A Limited Liability Partnership (LLP) can obtain trademark registration on its own name, as the Limited Liability Partnership (LLP) has its own juridical identity, separate from its partners.
Indian Company: An incorporated Indian Company has to file the Trademark Application in the name of the Company because of its separate identity under law. The Trademark Application must be signed by the Managing Director or any other official who is having authority under the Memorandum of Association and Board resolution.
Foreign Company: A Foreign Company has the privilege to obtain a Trademark application under its incorporated name. The Application must provide details about its nature and under which law it is made. There are various International conventions under which a Foreign Company can get Trademark protection in India.
Not for Profit Company, Trust, or Society: The name of the chairman of managing committee must be named in the application.
Documents required to Register a Trademark:
Incorporation Certificate: If the application is made on behalf of a Company or LLP.
Partnership Deed: In case of Partnership firm.
PAN: Of the Authorized Signatory.
Aadhaar: Of the Authorized Signatory
Signed TM-48 form: This is a power of Attorney to submit the application on your behalf.
Colored Logo: The Logo must not be in Black and white as all the color combinations are protected under Trademarks.
Types of Trademark Registrations: Following are the types of Trademark Registrations which are protected in accordance with Trademark Law:
Product Marks: A product mark is applied to goods or a product. Trademark applications filed under the Trademark classes 1-34 could be classified as product marks.
Service Mark: A service mark is used to identify a service rather than a product. The trademark applications are submitted under trademark classes 35-45, which could be considered service marks because they represent services.
Collective Mark: Collective mark can be used by a group of people to protect goods and services on a collective basis. A trademark holder can be an association, a public institution, or a Section 8 corporation.
Certification Mark: It is a sign issued by the proprietor that indicates the product's origin, substance, quality, or other specific data. The main objective of certification is to establish a product's standard and to provide buyers with assurance that the product has passed standardized tests to ensure quality. Generally, certification marks can be seen on packaged goods, toys, and electronics.
Shape Mark: The shape mark provides protection to secure the shape of a product or the shape of the packaging of the product.
Pattern Mark: The pattern marks are for products that have a specific designed pattern that serves as the product's distinctive feature. Patterns that do not stand out as noteworthy are rejected. A pattern mark must stand out as distinct in order to be registered.
Sound Mark: A sound mark is a sound that can provides a product or service a distinctive character. Sound logos are also known as audio mnemonics, and they occur at the start and finish of commercials. The most popular sound mark in India is the tune for IPL.
Benefits of Getting Trademark Registration
Here are a few benefits.
Intellectual Property Protection: The legal protection provided by trademark registration is against the misuse or copying of the company's name or registered logo. The trademark owner acquires legal ownership of the trademark, which can be enforced in any court. When a trademark is registered, the owner gains nationwide possession of the mark.A trademark registration serves as a formal notice that the trademark has already been registered.
Powerful Deterrent: A trademark owner obtains the ability to publicly display his or her brand as a registered trademark, alerting others and eliminating the defence of innocent infringement. Once a trademark is registered, it will appear in search reports, preventing other applicants from pursuing the registration of the same or similar mark.If you are the first to file a trademark, the National Trademark Office in New Delhi will reject to register any trademark that appears to be confusingly similar to another trademark.
Legal Remedies: The owner of a trademark can recover up to triple damages from the offender if the trademark is registered. The owner is presumed to be the rightful owner of the trademark. When a trademark is registered, the owner gains the ability to sue anyone who is misusing the mark in any court.
It is necessary that before beginning, the entrepreneur must search for trademark availability. Doing a Trademark search will provide information about identical or similar Trademark filed with the Trademark Registry.
The trademark registration application can be filed with the Trademark Registrar after the trademark search is completed. However, the application must be made in the prescribed manner and preceded by the applicable fees. The application can be made online or at any of the state's five Trademark Registrar's offices.
The Trademark Registration application must contain the following information:
Logo or the Trademark
Name and address of the Trademark owner
Trademark used Since the date
Description of the goods or services
The Vienna Codification Process
The Vienna Classification, also known as the Vienna Codification, is an international classification of the symbolic elements of trademarks that was established by the Vienna Agreement (1973). The Trademark Registrar will apply the Vienna classification to the Trademark based on the marks' figurative elements after the Trademark registration application is filed. While this work is being done, the trademark application status is usually displayed as "Sent for Vienna Codification".
Post completion of the Vienna Codification, the Trademark registration application will be assigned to a Trademark Registrar's officer. After that, the officer will check the Trademark application for accuracy and produce a Trademark examination report. The officer has the option of accepting the Trademark application, allowing trademark journal publication, or objecting to the Trademark registration process.
If the application is denied, the applicant has the option of appearing before the Trademark Officer to answer the concerns. If the officer finds the justification sufficient, the Trademark will be approved for publishing in the Trademark Journal. The applicant has the ability to appeal the officer's judgement to the Intellectual Property Appellate Board if the grounds aren't suitable.
Trademark Journal Publication
The proposed Trademark is published in the Trademark journal once the Trademark Registrar accepts the registration application. This journal is published weekly and contains all of the trademarks that have been received by the Registrar. In addition, members of the public can oppose to a trademark registration if they believe it would harm them. If no objections are received within 90 days of publication, the mark will be registered in 12 weeks.
If a third party objects to the application, the Trademark Hearing Officer will schedule a hearing. Both the applicant and the opposer have the opportunity to appear and present their respective justifications. Based on the hearings and the evidence put forth, the Trademark Hearing Officer will determine if the application should be accepted or rejected. However, the decision by the Hearing officer can also be challenged by the escalating officer.
If no objections or oppositions are raised, just the trademark document and registration will be prepared and issued. Trademark is deemed a registered trademark of the owner only once the Trademark registration Certificate is issued, providing the owner some exclusive rights to the mark. The ® Symbol can now be added to a logo or a trademark.
The trademark examiner objects to your application for a variety of reasons, which is one of the first stages in the trademark registration process. The registrar seeks valid reasons or explanations about the mark and its registrability, rather than simply denying your claim. He offers the applicant the chance to explain how the trademark meets the requirements for successful registration.
A trademark opposition is an objection filed by a third party against the registration of a trademark. The Registry accepts oppositions from any natural or legal person. This comprises individuals, businesses, partnership firms, and trusts (s). Notably, the person registering the opposition does not need to have an economic interest in the case or a previously registered trademark with the Registry to file the opposition.
A trademark hearing is a physical appearance before the registrar of trademarks, either in person or by a trademark attorney or trademark agent, for the purpose of removing the proposed objections under review from a report issued following the filing of a trademark registration statement or application. If the registrar authority is not satisfied with the response lodged against the objection proposed in the final report in the procedure of trademark certification, a trademark hearing is held.