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What is a Trademark?
A Trademark generally refers to a “brand” or “logo”.
Trademark registration can also be obtained for a business name, distinctive catch phrases, taglines or captions.
Properly used and promoted, a Trademark may become the most valuable asset of a business. Trademarks such as Coca Cola, HP, Canon, Nike and Adidas serve as an indication of origin of the goods as well as an indication of quality.
Use of TM, SM and ® symbols
‘TM’ stands for Trademark and ‘SM’ stands for Servicemark. The use of TM and SM symbols notifies the public that the company is claiming exclusive ownership of the trademark and can generally be used by one who has filed a trademark application.
The ® symbol, can be used only once the trademark is registered and the registration certificate is issued. Also, you may use the registration symbol only in connection with the goods and/or services in respect of which the trademark is registered.
The registration process is the same for both trademarks and servicemarks.
MBSoffers a comprehensive range of trademark services which include:
* Trademark Search
* Opinion on registrability of trademark
* Filing and prosecuting trademark applications
* Responding to office actions
* Handling trademark opposition proceedings
* Dispute resolution and litigation
* Advice on validity of registrations
* Advice on infringement and passing off
* Issuing legal notice (cease and desist letters)
* Publishing caution notice
* Trademark watch and monitoring services
* Renewal of trademarks
* Trademark due diligence
* Drafting license agreements, franchisee agreements and assignment deeds
Before filling an application
Before adopting a trademark, a trademark search is highly recommended, as this will give an indication of any existing trademarks which have been applied for/or registered in the Trademarks Registry.
MBS provides trademark search services in India, assisting clients in the selection of brand names and ascertaining whether any identical or similar trademarks are already existing in the records of the Trade Mark Registry.
The cost of conducting a trademark search is quite insignificant in comparison to the efforts and costs involved in rebranding due to infringement of others rights.
Therefore, a trademark availability search is highly advisable before huge amounts of money and time are invested in a trademark and the guidance of an experienced trademark attorney are extremely worthwhile.
In order to conduct a trademark search, kindly provide us with the following simple information:
i) Trademark to be searched
ii) Goods/Services in respect of which the trademark is to be searched
Classes of goods and services
Before filing a trademark application, it is necessary to identify the classes in which you wish to seek protection for your trademark.
An application should be made in the relevant classes of current goods/services as well as in classes where there is intent to use. All goods and services are divided into 45 classes.
The 9th edition of the NICE international classification system is followed in India.
The following list gives general information about the goods and services covered in each class.
Selecting a good trademark
A trademark must be chosen carefully. If you are launching a product and adopting a new trademark, please bear in mind that the scope of legal protection you would obtain depends on the type of trademark chosen.
The most common mistake is to choose a word that is descriptive of the goods or services. People do this in the belief that the consumer will know straight away what the product is or the service rendered. The same result can easily be obtained by combining a distinctive and fanciful trademark with a word which indicates the goods or services. E.g. Kodak film.
Descriptive trademarks are difficult to register and enforce. Although it may be easier to market such products at inception, such trademarks are offered the least amount of protection and therefore, in the long term, it would be difficult to stop your competitors from using the same or similar trademarks.
A better strategy would be to adopt a coined word, which has no reference to the goods/services upon which it is used. E.g. Canon
Another option is to adopt an arbitrary word, which has no relevance to the goods/services upon which it is used. E.g. Apple computers; Lotus software
GUIDELINES TO BE FOLLOWED:
AVOID Superlative or Laudatory words E.g. Premium, Gold, Deluxe
AVOID Descriptive words E.g. Coffee shop for coffee bars; Cooler for Refrigerators
AVOID trademarks Confusing Similar to existing trademarks
AVOID words which have direct reference to the Character or Quality of the product/service. E.g. Best Choice, Easy Cook, Super
AVOID Common Personal Names or surnames. Such names are registrable only if it has acquired distinctiveness through advertisements and long use
Well known geographical names such as SWISS chocolates or U.S.A. pizza are also not registrable.
There are also other factors to be considered in the adoption of trademarks, which is beyond the scope of this text.
Requirements for filing a trademark application
|1.||The name, address and nationality of the applicant. If the applicant is a partnership firm, the names of all the partners. Also mention whether any minor is a partner.|
|2.||If the applicant is a company, the country or state of incorporation.|
|3.||A list of goods and/or services for which registration is required.|
|4.||Soft copy of the trademark to be registered.|
|5.||If the mark contains or consists of non-English words, a translation of those words into English is required.|
|6.||If the application is to claim priority from an earlier filed convention application, details of that application is also required (application number, filing date, country and goods/services). A certified priority document or its duly notarized copy is to be submitted. If the certificate is not in English, a certified/notarized English translation is also required. If it is not readily available, the application can be filed based on the basic application number, date of the application and country of the application. A copy of the priority document can be submitted within 1 month from the filing date of the application.|
|7.||Date of first use of the trademark in India, if at all used|
|8.||Power of attorney simply signed by the applicant (no legalization or notarization is required). For Indian clients, power of attorney to be executed in 100 Rs. stamp paper and signed by the applicant. The power of attorney is not required at the time of lodging the application and can be submitted later with no additional cost.|
Trademark Registration Process
Upon filing of the application, the registry will issue us with an official receipt with the filing date and number allotted to the application. The application is then formally examined by the Indian Trade Marks Office, as to its inherent registrability and/or any similarity with existing marks. If an objection to registration is raised, an official examination report will issue. To overcome the objection, it is necessary to file a written response or presenting evidence of acquired distinctiveness and in most cases, an interview/hearing with the examiner is posted. The Registrar may require the applicant to file an affidavit testifying to such user with exhibits showing the mark as used.
If, following examination, the trade mark application is considered allowable, a Letter of Acceptance (TLA order) will issue, after which the trademark will be published in the Trade Marks Journal. If there are no oppositions within 4 months from the date of advertisement in the Trade Marks Journal, then the trademark registration certificate will issue.
Trademark Registration is a tedious process and it takes around 18-24 months to obtain registration in a straight-forward case, without any objections or oppositions. However, once the trademark application is filed, an application number is allotted immediately and the priority starts from the date of application.
Once the trademark is registered, it is valid for a period of 10 years from the date of application. The registration can then be renewed indefinitely as long as the renewal fees are paid every 10 years.
Flow Chart for Trademark Registration in India
Time Frame (Working Days)
International Trademark Registration
Trademark registration is territorial in nature. Separate applications need to be filed in each country where you wish to register your trademark.
If you plan to sell and market internationally, it is essential to register your trademarks in those countries. Usually, the party who first registers a mark owns it. Therefore, it is significant to register your trademarks in each country your company considers to be a potential and key market. A national trademark registration stops at the border and does not afford rights to the owner of the trademark outside the country in which it is registered.
Most companies expanding into other countries often realize the value of registering their trademarks abroad once it is too late, that is, once they are faced with counterfeiters/imitators or once they are accused of infringing the rights of others. The risks of doing so are very high and the consequences may be extremely costly and detrimental to a company’s entire business and export strategy. It can be a severe financial liability to invest in a brand, promote it in the local market, then find that the brand cannot be registered and used internationally and have to finally abandon that investment.
1. Registering a trademark abroad renders the company an exclusive right to commercialize its products in those markets.
2. This not only provides a solid foundation to stop counterfeiters but also ensures that the company enjoys exclusive rights over what may be one of its most valuable business assets.
3. Registering a trademark abroad also provides the opportunity to license the trademark to others or may be the basis for a company’s franchising or merchandising strategy.
Thus, the benefits of international registration and protection of one’s trademark clearly outweigh the costs of such registration.
Frequently asked questions
1. What is a trademark?
A trademark is generally referred to as a “brand” or “logo”.
A trademark can be a word, symbol, logo, brand name, wrapper, packaging labels, tagline or a combination of these and are used by manufacturers or merchants or service providers to identify their own goods and/or services. It is used to distinguish the owners’ goods or services from those of its competitors and is something that will be distinctive of just one trader. Properly used and promoted, a Trademark may become the most valuable asset of a business.
Trademarks should not be confused with trade names. While trade names can also serve as trademarks, registration of a company or business name under the Companies Act does not in itself give protection against others who might commence using identical or similar marks.
2. What are the advantages of obtaining trademark registration?
∙Prima-facie evidence of ownership of the trademark.
∙Important asset for your business or company and contributes to the goodwill generated.
∙Gives you stronger enforceable rights to prevent others from using the trademark in connection with the goods or services for which it is registered.
∙Trademarks can be sold, licensed or assigned.
∙ Registration usually covers the whole of India.
3. My Company Name is already registered under the Companies Act. Why should I go for trademark registration of my company name/trade name?
Registrations of Company Names, Business Names or Domain Names do not provide ownership or a monopoly right in a name as do trademark registrations.
4. How do I find out whether a trademark / brand name is already registered in India?
A search of the Indian Trademark Registry database will indicate whether there are any marks identical or deceptively similar to your trademark in India. The trademark search can be conducted in the official Trade Mark Registry website in India in the link copied below:
5. What is the difference between trademark registration and copyright registration for logo?
A logo can be protected both under the Trade Marks Act and Copyrights Act.
Trademark Registration enables you to obtain protection for the brand name and also provides certain amount of protection to the manner in which the trademark is represented. However, if you need exclusivity for the representation of your trademark or logo, a copyright registration is strongly recommended. Copyright registration does not however offer any protection for the brand name.
6. What is the validity of a trademark registration?
Once the trademark is registered, it is valid for a period of 10 years from the date of application. The registration can then be renewed indefinitely as long as the renewal fees are paid every 10 years.
7. How long does it take to register a trademark?
Trademark Registration is a lengthy process and it takes around 18-24 months to obtain registration in a straight-forward case, without any objections or oppositions. However, the trademark application number is usually issued within one or 2 days after filing.
8. Can I use the ® symbol?
You may use the ® (Registered symbol) next to your trademark once your trademark is registered and registration certificate is issued. Kindly note that it is an offence, with penalty, to falsely claim that your trademark is registered. Till the registration is obtained, you can represent your trademark along with the letters TM to indicate that you claim rights over your trademark.
9. The status of my trademark application is “Send To Vienna Codification”. What does it mean?
It is one of the initial stages of the trademark registration process where the status in the Trade Mark Registry website shows as “Send To Vienna Codification”. As a part of the trademark registration process, any trademarks comprising figurative elements/logo is assigned a Vienna Code by the Indian Trade Mark Registry. This is one of the first steps taken by the Registry where the trademark comprises a figurative element/logo. The Vienna code is assigned based on the nature of the figurative element/logo. Such figurative elements/logos are codified according to the Vienna Agreement as per the link below:
Vienna codification is done so that trademark searches can be conducted for artwork/logo. Once the Vienna codification is done, the status of trademark application is usually changed to Fomalities Chk Pass or Formalities Chk Fail.
10. The status of my trademark application is “Formalities Chk Pass”. What does it mean?
It is one of the initial stages of the trademark registration process where the status in the Trade Mark Registry website shows as Formalities Chk Pass. The Trade Mark Registry usually checks if the basic requirements are met such as: whether the POA has been uploaded (when filed through an agent) and whether appropriate translation/transliteration has been filed when the trademark is not in English/Hindi. When such basic requirements are not met, the status could be reflected as “Formalities Chk Fail”.
11. The status of my trademark application is “Formalities Chk Fail”. What does it mean?
It is one of the initial stages of the trademark registration process where the status in the Trade Mark Registry website is shown as Formalities Chk Fail. This could happen in instances such as non-filing of POA, non-filing of translation/transliteration when the trademark is not in English/Hindi, filing in wrong class, etc. The reason for the Formalities objection should be ascertained and appropriate action should be taken for the application to move forward for registration.
12. The status of my trademark application is “Marked for Exam”. What does it mean?
The status shows as “Marked for Exam” when the trademark application has been assigned to an Examiner. The trademark would be examined as to its registrability under the various Sections of the Trade Marks Act. An examination report is then issued either accepting the trademark for publication or raising objections as to its registrability. At this stage, the applicant needs to wait for the examination report to be issued.
13. The status of my trademark application is “Exam Report Issued” / “Accepted”. What does it mean?
The status “Exam Report Issued” or “Accepted” is used by the Trade Mark Registry to indicate that the trademark application has been ordered for publication in the Trade Marks Journal prior to registration. This status is used by the Registry when no objections are raised by the Examiner as to the registrability of the trademark or when the objections are overcome by way of written submissions or hearing. No action is required by the applicant at this point unless the application does not move forward for journal publication.
14. The status of my trademark application is “Objected”. What does it mean?
The status is shown to be as “Objected” when the Examiner raises some objections regarding the registrability of the trademark. The examination report citing the objections can be viewed in the Trade Mark Registry website. In order to overcome the objections, a written response needs to be filed with the Trade Mark Registry within one month from the date of receipt of examination report, failing which the trademark application may be treated as abandoned by the Registry. If the Examiner is not convinced with the written response, a hearing is posted for allowing arguments to be put forth in person.
15. The status of my trademark application is “Advertised before acc” or “Advertised” or “Accepted & Advertised”. What does it mean?
The status is shown to be as “Advertised before acc” or “Advertised” or “Accepted & Advertised” when the trademark application is advertised/published in the Trade Marks Journal. This is one of the final stages in the trademark registration process. Once the trademark is published in the Trade Marks Journal, 4 months time is given for any third party to oppose the registration of the trademark. If no oppositions are filed during the 4 month opposition period, then the trademark registration certificate is usually issued within 3 months thereafter.
16. The status of my trademark application is “Opposed”. What does it mean?
The status is reflected as “Opposed” when a third party has filed an opposition to the registration of your trademark. The notice of opposition is sent by the Registry to the applicant or its agent. In order to contest the opposition, a counter statement should be filed within 2 months from the date of receipt of notice of opposition, failing which the trademark application will be abandoned and cannot be revived. No extension of time is granted for filing the counter statement.
17. The status of my trademark application is “Send Back to EDP”. What does it mean?
When there are errors regarding data entry of applications which needs to be rectified, the application is sent to EDP Section and the status is shown as “Send Back to EDP”. This could also happen in cases where the documents are not digitized properly. The status would remain as “Send back to EDP” till these issued are rectified by the EDP Section.
18. The status of my trademark application is “Send to PRAS”. What does it mean?
PRAS refers to Pre-Registration Amendment Section. Any amendments which have been filed prior to registration such as amendment of proprietor details, address, specification of goods, etc. are dealt by PRAS Section.
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This article is written by: ACS Prince Kunal
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