What is Trademark and Types of Trademarks

01 Jun 2022

legaltax

What is Trademark and Types of Trademarks

OVERVIEW

Trademark is termed as a unique signs that are used to make the goods or services identifiable or distinguishable from others. They can be designs, pictures, signs or even expressions. To get the protection of trademark rights, a person/entity has to apply for trademark registration. Trademark registration helps in stopping others from copying the mark. Registered trademarks help the customers in recognizing the brand and the brand value at one instance. The trademark is registered under The Trademark Act, 1999. Trademark registration provides the right to sue against the person /entity who tries to use the registered trademark. A person cannot use a similar trademark that is already registered.

A registered trademark is the business’s valuable asset. It acts as a protective cover of the company’s investment made in the logo or brand.

In India Trademarks are registered by-

A Trademark is a sort of Intellectual Property including design, name, sign, word, or expression which recognizes a product or service of a particular company from others in the same market. The owner or proprietor of a Trademark can be a company, organization or any individual. A Trademark may be seen on a label, a package, or on the product itself. In India, Trademark Registration allows the owner to use names, images, symbols, or words to represent a business or product provided by a company or a business to differentiate the products or services. Once the Trademark is registered in India, no other business or organization can use it as long as it remains in use.

 

The Trademark Registration in India also provides the exclusive right to sue others who try to use, sell, or copy your Trademark and prevents others from using an identical Trademark to the one registered by you. Once your Trademark is registered, then the owner can use the TM symbol on it. So it is advisable to get Trademark Registration under the proper guidance of a legal expert because the registration process of a Trademark has various steps, and it also requires regular follow-up from the Government.

A trademark can be defined as the unique identity that makes your company, product, or service stand out from the rest. A registered trademark is your business’s intellectual property/ intangible asset. It protects the investment made into creating trust and loyalty among your customers.

The registration provides the right to sue against others who try to copy your trademark and prevents others from using a similar trademark to the one registered by you.

 

WHAT IS THE IMPORTANCE OF TRADEMARK REGISTRATION IN INDIA?

Trademark registration in India allows the applicant to use symbols or words to represent a business or the products that are offered by a business to distinguish the goods or services that are offered by them from the competitors. After the trademark is registered in India no other organization cannot use it as long as it remains in use.

 

CLASSES OF TRADEMARK

 

There are a total of 45 different Trademark Classes, and all the products & services are classified across these classes. Before the Trademark Registration, it is necessary to carefully choose the Trademark Classes as it will determine your Trademark validity for your business' products or services. If your business operators across various products or services that come under different Trademark Classes, you have to make sure that you apply for the Trademark under all the related classes.

 

FOLLOWING ARE SOME VITAL TRADEMARK CLASSES IN INDIA:

 

  1. Class 9: This Trademark Class comprises Computer Software & Electronics;
  2. Class 25: This includes clothing;

 

  1. Class 35: This includes business management & advertising;
  2. Class 41: This includes Entertainment & Education;

 

ELIGIBILITY CRITERIA FOR TRADEMARK REGISTRATION IN INDIA

 

In India, Trademark Registration can be obtained by businesses or individuals or by non-profit organizations. But, each of the different class of individuals or companies have different necessities for obtaining Registration of Trademark. Following is the eligibility criteria:

 

  • Proprietorship Firms

 

At the time of filing a Trademark application in India for a Proprietorship Firm, the full name of the candidate must be mentioned and if the business name is provided by the candidate and if the name of the Proprietorship is provided it will not be acceptable.

 

  • Overseas Company

In this case, the overseas company files an application for Trademark Registration in India. The application of Trademark is to be made in the corporate name as it is registered under a foreign country.

 

  • An Individual

An individual who wants to start a business in the future can also file an application and obtain Trademark Registration in India for a name, word, design or a symbol that is planned to be used by the owner. So an individual can also apply for Trademark registration.

 

While filing a Trademark application for the Partnership Firm, all the partners' names should be mentioned in the application form. If the Partnership Firm consists of a minor in the partnership in the guardian's name who is showing the minor should be mentioned in the Trademark application. So if there is any minor present in the partnership firm he/she should be mentioned specifically.

 

In this case, the application must be in the name of the LLP. A Limited Liability Partnership is a registered body where the partners have their own identity. The partners cannot be the candidate as the Trademark belongs to the Limited Liability Partnership.

 

If the Trademark application is filed on behalf of the Society or Trust, then the name of the Chairman, Managing Trustee or the Secretary that is showing the trust or the Society is to be mentioned.

 

  • Indian Company

If the Public Limited Company, One Person Company, or a Private Limited Company files a Trademark application, the application is to be made in the company's name. As they all are self-governing companies, they are applied cannot be made by the Director. However, the application form can be signed and submitted by the company's Director or any legitimate officer.

 

  • Joint Owners

If two individuals are deciding to file an application for Trademark Registration, then the name of both individuals should be mentioned in the Trademark application. It is mandatory to mention the name of both the partners.

 

TRADEMARK REGISTRATION FOR MSME

An MSME registration or Udyog Aadhar registration is a scheme started by the Indian government to help encourage and facilitate the establishment and growth of small enterprises in India. The

 

MSME became functioning on October 02, 2006. MSME enterprises are the backbone of the economy in a developing country like India. The purpose behind establishing MSME was to facilitate, promote and expand the competitiveness of the micro, small and medium enterprises. Currently, the government revised the MSME classification under the Aatmanirbhar Bharat Abhiyan (ABA) by adding combined criteria for both investment and annual turnover. Also, under the MSME definition the difference between the manufacturing and the services sector has been removed. The reason behind the removal was to create uniformity between these sectors.

This voluntary registration scheme provides various benefits to small, micro and medium enterprises in India. One of the benefits is the reduction in fees for the registration of a trademark. The following business entities can apply under this scheme:

  • Manufacturing companies or firms whose total investment is lower than ₹10 crore.
  • Service sector companies whose total investment is less than ₹5 crore.

WHAT IS THE ELIGIBILITY OF TRADEMARK IN INDIA?

The following items can be registered as trademark in India:

  • Letters/words or numbers
  • Phrases
  • Symbol
  • Sound mark
  • Smell
  • Logo
  • Brand name
  • Color combination

WHAT IS MSME TRADEMARK REGISTRATION?

A trademark is a brand name, symbol, or logo that helps consumers identify your products/services and differentiate them from your competitors. It can be anything from a word, logo, phrase, or color palette that helps set your business apart. Therefore, trademarks are an integral part of creating a brand identity or image for your company. Likewise, trademark registration is the legal process by which companies secure exclusive ownership rights on their mark. MSME trademark registration is the process by which MSMEs can secure legal protection of their brand name, logo, or symbol in India at half the price of the normal trademark registration.

 

DOCUMENTS NEEDED FOR TRADEMARK REGISTRATION

 

Following are some essential documents that must be arranged during the Trademark Registration Process in India:

 

  • Identity proof of the owner must be submitted like (Aadhar Card, PAN Card, Driving License, Passport)
  • In case of Limited Liability Partnership or a Private Limited Company submit Partnership Deed or Certificate of Registration (COR)
  • Submission of the address proof that is all the utility bills.
  • Power of Attorney signed by the applicant.
  • Submit the copy of logo if required (it is optional).
  • Duly signed Form-48.

 

Form 48 – This form is an authorisation from the applicant to a Trademark Attorney for filing an application for Trademark Registration on their behalf.

 

DOCUMENTS REQUIRED FOR TRADEMARK REGISTRATION OF MSMEs:

 

  • Address proof of the registered office
  • PAN of the company
  • Bank Account details
  • PAN of partner, proprietor and directors as applicable
  • Aadhar Card number
  • Goods/services/entity/enterprise is dealing in
  • Number of employees of the entity/enterprise
  • Certificate of incorporation or partnership deed
  • The address proof of the company
  • Copy of the trademark or logo
  • Details about the business
  • Udyog registration certificate

 

PROCESS FOR THE TRADEMARK REGISTRATION

 

Steps to be followed for the Trademark Registration are as follows:

 

  1. Searching of Trademark: This is an essential step of Trademark Registration before commencing registration, it is necessary for any entrepreneur to search for Trademark availability. Trademark Search will provide detailed information of similar Trademark filed with Trademark Registry.
  2. Trademark Application Filing: Once you complete the Trademark Search, then the Trademark application can be filed with the Registrar of Trademark. The Trademark application should be in a prescribed manner and filed along with the prescribed fees. The

 

Trademark application can be made online or in any Registrar Offices of Trademark with jurisdiction over the state. Following are some vital information that is mentioned in the Trademark application:

    • Logo or name or the Trademark;
    • Detailed information of the products or services;
    • Full name & address of the Trademark holder;
    • Trademark used before (if any).
  1. Vienna Codification Process: The Vienna Codification was set up by the Vienna Agreement in 1973; it is an international categorisation of symbolic elements of marks. Once the application of Trademark Registration is filed, the Trademark Registrar will apply the Vienna categorisation to the Trademark based on the symbolic elements of marks. When this process is in progress or pending, then the application status of Trademark Registration shows “Sent for Vienna Codification”.
  2. Examination of Trademark: Once the above step is done, then the Trademark application will be allotted to a legitimate officer of the Trademark Registrar Office. The officer will examine the application for any changes. If they detect any mistakes or errors in the Trademark application, it will send to the applicant back for correction or issue a Trademark examination report. After rectifying the mistakes, the officer will check again, and it will accept the application after verifying, allow Trademark Journal publishing, or object to the process of Trademark Registration.

If the Trademark application is rejected or refused, the applicant can appear before the Trademark officer and deal with objections. If the officer finds the jurisdiction pleasing, the Trademark will be allowed for publication in the Trademark Journal. If the reason for rejection is not satisfactory, then the applicant has the right to appeal against the decision of the officer before the IPAB (Intellectual Property Appellate Board).

  1. Journal Publication of Trademark: When the Registrar accepts the Trademark application, and then the Trademark is published in the Trademark Journal. The Trademark Journal consists of all the Trademarks that are received by the Trademark Registrar. The people can also object to the Trademark application if they feel that the Trademark Registration can spoil them. If there is zero objection within three months or 90 days (approximately) of the publication, then the mark will be incorporated within 12 weeks. If the Trademark application gets any opposition from a third party, then a hearing will be conducted by the Trademark Hearing Officer. Both the opposer who oppose the application and the applicant or owner of the proposed Trademark have an opportunity to appear at the time of the hearing and provide their justification, respectively. Based on the hearings and the proof, the officer will make a decision whether the Trademark application should be accepted or rejected. However, the hearing officer's decision can be challenged by the escalating officer.
  2. Trademark Registration: In case there are no oppositions or objections, only the Trademark Registration & manuscript will be prepared & issued. Only after the Certificate of Trademark Registration is issued, Trademark is deemed to be a registered Trademark of the owner, granting the Trademark owner some rights of the marks.

 

HOW MSME TRADEMARK REGISTRATION HELPS?

MSME trademark registration can help companies in the following ways:

  1. By obtaining exclusive ownerships rights over a symbol or brand name.
  2. By providing effective marketing strategies which are based on having visually recognizable symbol, such as a trademark.
  3. By protecting your brand image from infringement and duplicity.
  4. By growing your brand awareness, visibility and credibility.
  5. By making it easier to expand your business either within or outside India.
  6. By helping you to protect your hard-earned goodwill and credibility business.
  7. By making it easier for your consumers to differentiate your products and services.

 

TRADEMARK REGISTRATION FEES FOR MSMES

As per the amended Trademark Rules of 2017, the trademark fees for MSMEs have been greatly reduced to help small companies secure trademarks. The new trademark registration fees for MSMEs are as follows:

For usual trademark applications:

  1. Individuals and proprietorship Firms – ₹4,500/- per class per application
  2. Companies, partnership firms, and LLPs – ₹9,000/- per class per application
  3. If the company has a Udyog Aadhar/MSME registration — ₹4,500/- per class per application

 

IMPORTANT POINTS TO REMEMBER ABOUT TRADEMARK REGISTRATION FOR MSMEs:

  1. An important part of applying for trademark registration as an MSME is understanding which class to apply under. As per the NICE Classification System, there are 45 different classes, of which the first 34 are for products with the rest being for services. Applying under the wrong class or failing to apply under all relevant classes will cost you dearly. Hence, this is why it is advised to get professional help for your trademark registration
  2. MSME owners must meet with legal experts to ensure they apply for a trademark in the right manner. Since these applications take time and effort, it is imperative that you get all the things right in the first attempt to prevent unnecessary delays
  3. You should consider applying for a trademark registration quite early in your entrepreneurial journey as the process can take up to 18 months
  4. Further, trademarks are territorial in nature. Additionally, a trademark obtained in India will only be valid within India and not abroad. If you wish to have a global trademark, you will have to apply for it individually in the countries where you need protection
  5. Likewise, a registered trademark lasts for 10 years from the date of filing the trademark registration application. Applicants must ensure they renew their trademark within this period to enjoy continued legal protection
  6. Once you apply for a trademark, you can use the ™ symbol next to the mark as an indication that you have filed such an application. Once the application is approved and you receive a Trademark registration certificate, you can start using the Ⓡ symbol next to your mark

 

  1. Trademark infringement is when there is unauthorized use of your trademark by an external person or legal entity. This is punishable by law if you have a registered trademark in India as per the Trademark Act of 1999.

 

WHAT ARE THE BENEFITS OF TRADEMARK REGISTRATION FOR MSMEs?

    1. Legal Protection: Registering your trademark for MSME can make you the legal owner of the registered trademark and then no other person can have the right to use the registered trademark without your prior permission.

It gives legal protection to the trademark and so if the trademark for MSME is not registered with the government then no action can be taken against a 2nd party even if the trademark is misused or violated. The owner of the registered trademark for MSME can take legal action against anyone who will copy the trademark without any prior permission.

 

    1. Unique Identity: One of the best characters of registering trademark for MSME registration is that it helps in establishing a unique identity of the company. Hence, the uniqueness prohibits the other competitor companies in the market to apply or use the trademark for the similar kinds of goods or services.
    2. Creation of Asset: Registered trademark for MSME acts as an asset for the owner as it is only the owner who has the authority to easily sell the trademark, franchise or permit it on the contract basis to any other party. Trademark registration creates a kind of intellectual property for the same.
    3. Trust or Goodwill: Trademark registration for MSME gives it a brand name. As registration of the trademark gives the product its uniqueness and novelty, it can effortlessly create goodwill, sense of trust, and ensure good quality in the minds of your consumer.
    4. Popularize the Brand: The registered trademark for MSME will be easily searchable on the available websites of government trademark database. It can help the owner to get popularity amongst people and also in the market which can attract more consumers and shall be advantageous for the company.

 

How Someone can Check Trademark Application in India?

 

Once you file the application for Trademark Registration, you can check the Trademark status by following the steps below:

 

  • Step 1: First, you have to visit the online website to check the status of the Trademark application, i.e., https://ipindiaonline.gov.in.
  • Step 2: On the left side of the website, you will see the first option that shows “Trade Mark Application/Registered Mark”, click on this button. Once you clicked it, two options will appear on your screen (National/IRDI Number and International Registration Number); you have to click the first option, which is the National IRDI Number.

 

  • Step 3: After this, you have to enter the Trademark application number, enter the captcha code, and click on the “View” button.
  • Step 4: Once you click the View button, the Trademark application status will appear on your screen.

 

TRADEMARK OBJECTIONS

 

  • In some cases, the trademark examiner might see certain problems or issues with the registration of your trademark. These issues can be either the filing of an incorrect trademark form, incorrect name/details, the usage of deceptive or offensive terms, insufficient information on goods or services, or the existence of an identical or deceptively similar mark
  • When an objection is raised, the status on the register will show as ‘Objected’, following which an expertly drafted response will need to be filed after an analysis of the objection itself and with any supporting documents and proofs. Objection response is your opportunity to strengthen the claim over your mark and create urgency.

 

If the response is accepted, the application will be processed further for registration and advertisement in the Trademark Journal. If it is not accepted, or if there are additional clarifications sought by the examiner, there could be a trademark hearing scheduled and this will be communicated to you by a notice.

 

  • The process typically takes 2-4 months from when the objection is first raised. Once completed, the chances for approval, while not guaranteed, are much higher.

 

 

TYPES OF TRADEMARK IN DETAIL

A Trademark is a symbol that can differentiate between the products or services of one owner and those of other owners. Trademark are protected by rights regarding intellectual property. Trademark right can be obtained at the national/regional by registration, by filing an application for registration with the national/regional trademark office and by paying the necessary fee. Trademark registration shall in practice, confer an exclusive right to the use of a registered trademark. This means that a trademark can be used exclusively by its owner or allowed for use in exchange for payment by another party. Registration offers legal certainty and enhances the role of the right holder in cases of litigation, for example:

A word or a mixture of words, letters, and numerals can perfectly represent a trademark. Trademarks, however, can also consist of sketches, symbols, three‐dimensional characteristics such as the form and packaging of products, invisible signs such as sounds or fragrances, or colour shades used as identifying characteristics. One can have the following broad categories of trademarks. They are:

 

  1. PRODUCT MARK: A product mark of a product is similar to a trademark. The main difference is that it only applies to products or goods and not to services. It defines a

 

product's origins and helps in the separation of products of a manufacturer from others. Overall, a trademark is an important way of maintaining a company's goodwill and reputation. It is possible to file an application for a trademark within a few days and use the 'TM' symbol. In general, the time needed for registration of a trademark to complete the formalities is about 18 to 24 months. If the trademark is licenced and the registration certificate is issued, ﴾Registered Symbol﴿ can be used next to the trademark. When a trademark has been registered, it will be valid for 10 years from the date of registration and can be renewed from time to time. A famous example of it is the symbol of Nestle or Amul.

 

  1. COLLECTIVE MARK: These are the trademarks used by a group of companies and can be protected by the group jointly. For the purpose of informing the public of a particular feature of the product for which the collective mark is used, collective marks are used. The owner of such marks may be an organisation or public body, or they may be cooperative. Collective marks are also used for the promotion of particular goods which have certain features specific to the manufacturer in a given field. Thus, a mutual trademark may be used by more than one trader, because the trader belongs to the group. It is the responsibility of a trader associated with a particular collective mark to ensure that its members follow certain conditions laid down in the rules relating to the use of the collective mark. Therefore, the object of the collective mark is to inform the public about certain aspects of the product for which the collective mark is used. Reliance and Tata Sons are examples of Collective Mark.

 

  1. SHAPE MARK: Under the Indian Trademarks Act of 1999, a trademark can also include the shape of products and their packaging, given that the shape can be clearly depicted graphically. This helps to differentiate between items marked under such a trademark and those of another manufacturer. The new Trade Marks Ordinance continues to require such marks to be licenced. If the shape of products can be registered for packaging with any distinctive element. Ornamental Lamps, for example. In some cases, a trademark may be the (three-dimensional) shape of a product or packaging (for example a specially designed

bottle of perfume). In a nutshell, after the technical development of graphics, Shape Mark has facilitated product promotion and emerged into the trademark type. Any graphical representation that makes a difference between the goods can be marked with form.

 

  1. SOUND MARK: Often, the sound that plays in the commercial becomes so well known that they instinctively understand what product/service it relates to when people hear it. The sound can be considered to be a trademark and is liable for registration. A sound mark

is a mark where a distinctive sound is meant to uniquely identify the origin of a product or

service. A certain tone, such as the MGM roar of a lion, is associated with a company or its products or services in the case of sound labels. The sound logo, technically referred to as the audio  mnemonic, along with  the brand music, is one of the sound branding

instruments. A sound logo is a distinctive short melody that is frequently put in a

commercial at the beginning or end. It can be perceived as the auditory equivalent of a visual logo. A combination of both forms of the logo is often used to implement the identity of a brand.

 

  1. PATTERN MARK: These are marks consisting of a pattern capable of marking goods or services as having originated in an undertaking and thereby separating them from those of other undertakings. These products/services may be registered as Pattern Marks. The method for determining the uniqueness of design marks is similar to that of other types of

marks. Descriptive or indistinctive pattern marks are objectionable because they fail to function as a trade source marker. These products/services would not be approved for registration without evidence of uniqueness. In circumstances where a pattern mark has been identified in the minds of the public with the goods or services of a particular undertaking, the acquired distinctive character is acquired and the pattern mark may be

registered. Therefore, Pattern Trademark is a trademark under which the pattern will differentiate the product from other products.

 

  1. CERTIFICATION MARK: It is a sign indicating that the goods/services are certified in terms of origin, content, quality, precision or other characteristics by the proprietor of the sign. This differs from a typical trademark whose purpose is to differentiate from a specific

business the goods/services that come from it. In short, in order to define the standard, certification marks are used. They guarantee customers that certain specified requirements are met by the product. The presence of a certification mark on a product indicates that the specified quality tests have been passed by the product. To ensure the desired quality of the product/service, they guarantee the customers that the producers have gone through an audit process. For example, food products, toys, cosmetics, electrical goods, etc., are

labelled in such a way that the protection and quality of the product are defined.

 

  1. SERVICE MARK: A service mark is the same as a trademark but defines and differentiates the source of service instead of a single product. For instance, a company such as Yahoo can brand those goods with a trademark, but use a service mark on the

internet search service it provides. 'SM' stands for it. A service mark is nothing but a mark that distinguishes between the services of one owner and the services of another. Service marks do not represent goods, but the services that the company offers. Companies that provide services such as assembly of computer hardware and software, restaurant and hotel services, courier and transportation, beauty and health care, advertising, publishing, etc. are now in a position to protect others from misuse of their names and marks. The rules governing service marks are essentially identical to those of any other trademark.

  1. HOLOGRAM MARK: Hologram Mark is a one step forward in a visual communication technique. Lately, such marks have witnessed a massive utilization across all verticals of the industry. Hologram marks encompass the 3-D illustration shown in a holographic device.
  2. MOTION MARK: Unlike multimedia marks, such types of trademarks purely excel on the visual element only. It usually exists in the form of an animated logo that appears for a short time, once or in a loop.
  3. MULTIMEDIA MARK: Multimedia marks are aggressively used in the film and TV Industry; they entail a visual sequence and sound elements. Netflix[1] utilizes the multimedia mark that protects its signature tone and animation logo that appears when users open the app.

 

  1. LOGOTYPE: A logotype is a logo centred around an organization name or into initials. Such types of trademarks are also referred to as letter marks or wordmarks. Visa, Google

and Coco-Cola are the few best examples of logotype trademarks.

 

WHAT ARE THE COMMON TRADEMARKS AVAILABLE TO BUSINESS OWNER IN INDIA?

  1. GENERIC MARK
  2. SUGGESTIVE MARK
  3. DESCRIPTIVE MARK
  4. ARBITARY MARK
  5. FANCIFUL MARK

 

 

  • GENERIC MARK: It manifests the general descriptions of a product or its seller. It could be general words such as watch or food or drink. But since these terms belong to the public, an eating house, for example, is not permitted to avail trademark protection. And rightfully so, as it would lead to a prejudiced monopoly over the entire food industry sector. Every other entity could hardly survive in such a scenario. Therefore, an entity ought to add another modifier to its products to register the generic mark.
  • SUGGESTIVE MARK: The marks above are widely used, and hence it would take more than a general approach for the applicant to avail protection for such terms. Convincing authority on the uniqueness of the generic mark is the hardest part of the trade marking process. Unlike a generic mark, the suggestive mark is less straightforward, and it only signifies the key attribute of the product, but in a controlled way. It negates the complete manifestation of the product or services. The best example of suggestive Trademark is Netflix and Airbus.
  • DESCRIPTIVE MARK: A descriptive mark refers to a mark that manifests some characteristics of the goods/ services. The description attribute could be quality, kind, quantity etc. Since such terms are deemed as a part of a global language, they are still eligible for trademark protection. Anyway, adding a signifier to suggest the product’s quality can help it avail trademark registration.
  • ARBITARY MARK: Such types of trademarks excel on the words or phrases from the vernacular. Unlike suggestive marks, these terms indicate no association with the product they signify. Businesses using arbitrary marks often rely on aggressive marketing strategies to make their product recognizable in the target market. It is needless to mention such strategies lure considerable investment.
  • FANCIFUL MARK: As the name suggests, fanciful marks have no dictionary meaning, but they can create a stronghold in the target market. Kodak is a primary example of a fanciful mark that indicates nothing in a literal sense but has an unprecedented recognition in the global market. Large organizations have a greater admiration for fanciful marks owing to their potency to foster a loyal customer base. The problem with Fanciful marks is that they are not explanatory and take a considerable amount of time to make their presence feel in the target market. Crafting a productive fanciful mark is a painful procedure for marketers and business experts. Considering the prevailing competition in

 

the market, a lot of thought process goes behind the development of a fanciful mark. Fanciful marks are easy to register as compared to other marks.

WHAT ARE THE PROHIBITED MARKS?

USPTO upholds absolute grounds on banning some words and terms for trademark registration; dismissals generally stem from the potential for misinformation or confusion. However, other reasons could also disqualify an application:

 

  • As mentioned earlier, generic names are usually barred from the outset as they could create an unreasonable monopoly over an industry.
  • Surnames are also forbidden from registration to avoid an applicant from obtaining exclusive rights to a name shared by multiple families.
  • Geographically descriptive or misleading terms cannot be registered legally to prevent a specific location from gaining exclusive control over a product type. On the other hand, products that claim false origins are also disallowed from as these maliciously confuse consumers.
  • Offensive and scandalous terms are inadmissible for registration as well. In this clause preventing the use of immoral marks, Intellectual Property demonstrates its mandate to protect not only the businesses but also the public interest.
  • As alluded to earlier, trademark applications exclude misleading and deceptive terms. These marks deliberately skew expectations and misinform consumers.

 

Expert Insight: Aside from the aforementioned absolute grounds for rejection, there are also relative grounds on which applications may encounter issues. Understandably, a trademark would not be granted if there is an existing right for a similar product. Having identical marks, or even those closely resembling each other, would cause damaging confusion for everyone. Furthermore, conflict with existing rights outside Intellectual Property legislation could also lead to legal impediments. Cultural, social, and personal freedoms should, by all means, maintain integrity throughout the registration process. It would be best to invest in a qualified firm to avoid potential damages.

 

TRADEMARK YOUR BUSINESS

Trademark came to be used as a foundation or base to prove one’s ownership over the goods produced by them from ancient times as not many knew how to read and write. From the 10th century onwards , ‘ merchants mark’ or ‘proprietary mark’ came into existence and during 14th and 15th centuries there is gradual emergence of trade and crafts guilds. People started using trademarks as an identification mark for good and services. The British Trademark Act of 1875 formalised the whole concept of ‘trademark’ to the modern world. Today the Trademark Act, 1999 governs the trademark registration and related aspects in India.

WHY IS IT MANDATORY TO REGISTER TRADEMARK?

Trademark is a sign that will help you to distinguish the products made by your company from others. All the famous companies around the globe have some specific trademarks of their own. A trademark can be a word, name, symbol or slogan. By trademarking your brand, you are now assured that no one else will ever try to sell products under your goodwill. As trademark provides

 

a proper security to the products which is being named under your company. In case anyone does that, the laws of the country will safeguard you. In case someone tries to alter or sell your products they will be punished by certain laws.

WHAT ARE THE STEPS TO TRADEMARK YOUR BUSINESS?

Still, there are few companies and owners who keep on postponing the registration of trademarks until something seriously goes wrong with their business. This can be dangerous as someone else might register the mark you have been building your brand around.

Rather than waiting until it’s too late, get started with the registration process as soon as possible. The following is the overview of the process:

  • Search: You need to conduct a detailed search of your trademark logo and brand name before going ahead with registration. You can use our free tool for that.
  • Class: Trademarks related to various industries are classified under different classes. In total there are about 45 classes of products and services. Depending on your business type, you can apply to get your business registered under various trademarks at the same time.
  • Application: Based on the results of the search, if the trademark is available, the applicant can apply for the mark and start using the ™ symbol with their brand’s logo after receiving the acknowledgement for the trademark application.
  • Registration: The trademark office will first conduct an all-round check based on your application, to ensure there is no objection. After the verification, there is no objection and the application is original, the office makes an advertisement in the Trademarks Journal. If there is no opposition from other business owners within the next four months, they go ahead to register your trademarks around six months later.

 

 

 

 

ONLINE TRADEMARK REGISTRATION PROCEDURE:

 

 

Step 1: Surf internet for a brand name that is “wacky-enough”

This is simply a short and best way for any newcomer to get a catchy, trendy, and an interesting brand name. Picking up a brand name that is wacky and quirky is definitely a wise move since most of the generic names would already be in someone’s hands. Moreover, zeroing in on a particular name requires a quick research process to ensure yourself that you are not picking a brand name that is already in use. The best part here is that you can invent or coin some words with a mix of generic words to create a unique brand name for yourself.

Step 2: Preparing a trademark application

The following supporting documents together with the application have to be submitted for online trademark registration:-

    • Business Registration Proof: On the basis of your registered business (for eg: sole proprietorship and so on), an identity proof of the company’s directors and an address proof have to be submitted. In case of sole proprietorship business, id proof of the proprietor viz.

 

PAN card, Aadhar card could be submitted. Whereas, in the case of companies, the address proof of the company needs to be submitted.

    • Soft copy of the trademark.
    • The proof of claim (which is applicable) of the proposed mark can be used in another country.
    • Power of attorney to be signed by the applicant.

Step 3: Filing the application of brand name registration

Manual Filing and e-filing are the two different ways for filing the registration application (form TM-A). If you choose ‘manual filing’ then you have to personally move and handover your application for the registration to the Registrar Office of Trade Marks situated in the major cities of India like Delhi, Mumbai, Kolkata, Ahmedabad, and Chennai. After that, you have to wait for at least 15 -20 days to receive the receipt of the acknowledgment.But in the case of an e-filing system, you will receive your receipt of acknowledgment instantly on the government website. Once after receiving your acknowledgment, you are eligible to use your TradeMark (TM) symbol beside your brand name!

Step 4: Examining the process of the brand name application

Once the application is dispatched, the Registrar of Trademark will check out whether you have followed certain terms and that your brand name complies with, the existing law. Moreover, there should not be any similarity or identical with any existing or pending brands for the registration. This is the reason why we preferred you to choose a quirky brand name!

Step 5: Publication of your brand in the Indian Trade Mark Journals

After the process of examination, the Registrar of Trademark will publish your brand name in the Indian trademark journal. This is certainly the most important part of the trademark registration and there should not be any opposition within 3 months, i.e. 90 days (or 120 days in some cases), from the date of publication. When there is no opposition, the Registrar of Trademark will proceed towards issuance of Trademark Registration Certificate.

Step 6: Trademark Opposition

If there is any opposition by a third party within 3 months of the trademark publication in the trademarks journal, the Registrar of Trademarks will give you a copy of the notice of the opposition. You need to reply to the opposition notice by filing a counter-statement within months. If you do not submit the counter statement within 2 months, the trademark application will be considered to have been abandoned and rejected.

 

However, if there is no opposition within 3 months, this step will not apply to you, and your brand name is proceeding towards acceptance for the issuance of Trademark Registration Certificate.

 

Step 7: Hearing on Trademark Opposition

This step will not apply to you, if there is no trademark opposition.

 

However, if your trademark is opposed by a third party and you send your counter-statement within 2 months, the Registrar of Trademarks will send your copy of the counter-statement to the third party opposing trademark registration.

Evidence must be submitted by you and the third party in support of your case. The Registrar will give you and the third party an opportunity of hearing after submission of evidence. After hearing both the parties and considering the evidence, the Registrar will pass an order of acceptance or rejection of the trademark application. If the Registrar of Trademark accepts your trademark application, then he will process to issue registration.

Step 8: The trademark registration certificate issuance

The Registrar will accept your trademark application if there’s no opposition being raised within the stipulated period   of   90   days   or   on   acceptance   of   your   trademark   application after trademark opposition hearing. Wow! And this will be the happiest moment for you as the Registrar issues the Registration Certificate with the Trademark Registry seal.

Right from the moment you have been issued with your certificate, you can use the registered trademark symbol (®) beside your brand name. Thus, with this blog post, we feel that even a beginner can understand all about creating a brand name and registering it successfully.

 

 

WHAT ARE THE DOCUMENTS REQUIRED TO TRADEMARK YOUR BUSINESS?

The documents that you need to provide while making an application to trademark your business are:

      • The logo of your brand/business.
      • PAN             Card             and             Address             Proof             of             Applicant. Certificate of registration (other than an Individual applicant).
      • If a specific user date is to be claimed, the user affidavit is also required to be submitted.
      • Proof of TM used: To claim specific user date, documentary proof such as invoices, registration certificates, etc. with the brand name should also be provided.
      • MSME/Start-up recognition: Partnership firm, body corporates (other than an individual) can provide a certificate of registration under MSME or Start-up India scheme to avail 50% rebate on the Government fee.
      • Signed Form TM-48: TM-48 is a legal document that allows the attorney to file the trademark on your behalf with the trademark registry. The document will be prepared by LW professionals for the signature
      • You need to give them a brief description of your business. It is necessary to identify the class of trademark to which your business belongs.
      • A signed copy of the Power of Attorney.
      • Aadhar card, driving license, or passport of the business owner as identity proof.
      • The owner of the business also needs to provide certified documents as address proofs.

 

WHO CAN APPLY FOR A TRADEMARK?

In the Trademark Registration form, the person whose name is mentioned as the applicant will be declared as the owner of the trademark once the trademark is successfully registered. Any

 

individual, a company and an LLP can be an applicant and may file the application for the registration of the particular trademark.

 

 

COST OF TRADEMARK:

The trademark registration fees are:

  • ₹4500/- for startups, individual and small businesses.
  • ₹9000/- for other cases.

The trademark attorney professional fee is ₹3500/- per application/ per class. However, with

Legaltax, it is just ₹1999/-

 

TRADEMARK REGISTRY: The trademark registry was established in 1940 then came the Trademark Act which was passed in 1999. Currently, the trademark registry works as the operation or functional body of the Act. Or it can also be said to be working side by side. As a functioning body, the trademark registry implements all the rules and regulation of the trademark law in India.

The Head Office of the trademark registry is in Mumbai and it has branch offices in Delhi, Ahmedabad, Chennai and Kolkata. When registering a trademark, it is registered under the Trademark Act, 1999 and then the registry of trademarks registers it. In this process, the registry will check whether the registering mark meets all the conditions of the Act before registering it.

 

TRADEMARKING A BRAND NAME:

 

By trademarking your company’s name, you are protecting the brand, its reputation, and your ideas, all of which you undoubtedly invested a great deal of blood, sweat, and tear working on. And while the trademarking process itself will take time in all areas considered, nothing would be worse than not protecting your brand and potentially be faced with an infringement lawsuit from a larger company.

The process of brand trademark registration in India is now possible and convenient such that you can trademark any one of the below things or even a combination of the following:

  • Letter
  • Word
  • Number
  • Phrase
  • Graphics
  • Logo
  • Sound Mark
  • Smell or a mix of colors

 

WHAT ARE THE TOP 8 THINGS YOU NEED TO KNOW REGARDING TRADEMARK REGISTRATION?

A trademark can be one of your company’s most valuable assets. It is a form of identification and contributes significantly towards building the company’s public image. A trademark is a visual

 

symbol – a word, name, numbers, label, logo, a combination of colors etc. It is a mark of uniqueness and helps the customers identify a particular brand or company.

The Trademark Act, 1999, governs the laws related to trademarks and their registration. The trademarks in India are registered by the Controller General of Patents, Designs and Trademarks, (Office of the Registrar of Trademarks), Ministry of Industry and Commerce, Government of India.

Take a look at the top 8 things you need to know about trademark registration:

  1. A Visual Representation

The types of trademarks you can get registered are quite varied. Here are a few types:-

    • Word Marks
    • Service Marks
    • Logos and Symbols
    • Shape of Goods
    • Series Marks
    • Collective Trademarks
    • Certification Mark
    • Geographical Indicators
    • Pattern Marks
    • Sound Marks
    • Colour Marks
    • Three Dimensional Marks
  1. An Intangible Asset

Consider the fact that your business builds a reputed name and turns out a successful brand. A trademark, being a type of intellectual property, brings heaps of benefits to the company. Once a trademark is registered, it becomes an intangible asset that can be traded, franchised, commercially contracted and distributed.

  1. Protection Against Infringement and Other Legal Protection

The owner of a registered trademark can exercise his legal rights in case there is any infringement with regard to the owner’s logo, brand, a slogan that has an active trademark against it. The owner has the right to sue any third party that uses the trademark without the prior permission of the owner of the trademark.

  1. Trademark Search

A trademark search is usually carried out to check if a particular trademark already exists. The search can be conducted through the government’s Indian Trademark Registry database or a third-party service provider website.

  1. Class Selection

The goods and services here are classified into 45 different sectors. Each sector is referred to as a class. Every logo or brand name is to be registered under the appropriate class at the time of application. Out of the 45 different classes, 34 of those classes comprise of product classes, and the remaining 11 are for service.

 

  1. Voluntary, not Compulsory Registration

The registration of a trademark is done on a voluntary basis. However, if a trademark is registered, it holds concrete evidence that the ownership of the trademark belongs to the person who has taken the effort to register it. All legal decisions will be in favour of the party that had the trademark registered.

  1. Validity

A registered trademark has a period of validity that stretches up to 10 years before it has to be renewed again. However, the renewal process may be initiated only within one year before the expiry of the registered trademark. If one fails to do so, the trademark will be removed. Even on removal, the trademark can be reinstated through what is known as restoration of the trademark in the prescribed form.

  1. Trademark Symbols
  • Trade Mark (TM) and Service Mark (SM): This symbolises that the trademark has not yet been registered, but an application for the same is pending. It is put up to warn third parties lest they infringe upon the same. There is no specific legal significance as such because the application has not yet been approved by the authorities.
  • R Symbol: On the approval of the trademark application, you, as the proud owner of the newly registered trademark, are empowered to display the R symbol next to the trademark. This symbolises that the trademark is officially registered, that infringement of any kind by a third party will be punishable by law.

It is not mandatory to display the R symbol. However, it protects the owner of the trademark in a way that, should anyone rip-off the actual product, on suing the third party for infringement, he has a right to recover all the profits that were lost. This is because the court requires the owner to prove that the infringer was aware of the fact that the trademark was registered and yet went ahead to use it without any prior permission.

  • C Symbol: The C symbol is generally used to signify copyright that the owner has over some creative work. This includes:
    • Artwork- Photography
    • Videography
    • Literary Works
    • Software

The C symbol is valid for a lifetime. The symbol is used with the copyright holder’s name and the year of the first publication in the country where the work was copyrighted. All in all, there is a lot that one must be aware of when it comes to trademarks and their registration. The process, in itself, is quite tricky, which is why the applicant must carry out proper research concerning the same. Therefore, registering your trademark has benefits aplenty provided it is done with due care.

 

WHAT ARE THE BENEFITS OF TRADEMARK REGISTRATION?

Registering your trademark is always a good idea as it will provide you with lots of benefits. Here are some key benefits of trademark registration:

    • Guards the commercial goodwill: A trademark’s registered owner has a right to create, establish and protect the goodwill of his/her products or services. The owner can stop other traders from using his trademark unlawfully. One can also sue the infringer for dilution of the brand name and claim damages for any infringement.
    • Legal Protection: A registered trademark gives its owner a legal right in case of infringement. Not registering a trademark may leave the owner of the original brand name without any remedy.
    • Advertisement of Goods and services: Registering a trademark creates a face of the company or the goods and services. This helps to distinguish and facilitate brand creation. Most of the companies find their identity via trademark hence it pays a pivotal role in advertising and increases the brand value.
    • Creation of an Asset: Trademark registration in India creates an intangible asset. Registered TM can be sold, assigned, franchised or commercially contracted to bring benefits to the company or the individual proprietor.
    • By registering, your trademark will be able to stop other competitors from using the same name. This way you will be able to safeguard your business from any extra expenditures related to claim settlements and damages.
    • In the modern business market, there are a lot of counterfeiters who try to make money by copying the designs of other successful brands. This can ruin your brand reputation and customer trust. In case your products get counterfeited, you can easily prove that you are the legitimate producer, provided your company or brand is being registered under the Trademark Act.
    • Registering also makes you aware of any pre-existing brand in the market. This way you will not end up in any false cases made against you. It will also save you from all the hassles related to rebranding, repromoting, and resetting your company.
    • Trademarks will bring a sense of responsibility within you. As an owner, you will always keep on with your hard work to provide quality products to your consumers.
    • Additionally, trademarks act as an asset for your company that can be bought, sold, or licensed. You can also demand royalties if any distributor or shopkeeper wants to use your mark.
    • Product differentiation: Trademark registrations are distinct to the goods or services they represent. Trademark will enable differentiation of your product as against the products of your competitors. Also, since trademark registration will be valid for the entire class of goods or services so represented, it will help in distinctly identifying your products. Customers uniquely identify products carrying different trademark, thus creating a customer base for your product.

 

    • Business expansion: A trademark establishes a connection between the customers and the products of an enterprise. With efficient or unique products, you can create a customer base. Your trademark helps you in retaining and expanding the customer base. Registration of your trademark confers exclusive rights of use for 10 years and protects your business revenues. Business enterprises can leverage the benefits of a customer base by introducing new products and expanding their business.

 

Some of the Trademark Mistakes Your Start-Up Must Avoid

 

OVERVIEW

A start-up company should consider various aspects while registering its trademark. There are some common trademark mistakes that a startup entrepreneur would make with respect to a trademark. To enjoy the benefits of trademark registration, make sure that you avoid the following mistakes that will be cited below in the next section. Every business in the world is working literally hard for the attention of its audience, which will identify you by the name of your brand. Given how valuable brands of successful business grow to be, it’s not just logical, it’s imperative. Yet, many start-ups delay trademark filing or vastly under think it, which could lead to significant losses. If you’re building a business, think seriously about the ambition you have for your brand. When you’re ready to register your trademark and you should do so sooner rather than later- the potential size of your brand will determine a lot. Here are 4 mistakes with examples of start-ups whose trademark missteps have affected their brand. Trademarks allow business owners to distinguish their product or service from others and make it easy for consumers to recognize their offerings. Considering how critical this is for a business, avoiding common trademark mistakes can be highly valuable if you are a business owner with creative or unique offerings.

COMMON TRADEMARK MISTAKES

  1. Delayed Filing

The start-ups life is busy as always. But not that busy that someone cannot file the registration process of trademark on time. While it will only be registered two years later (bureaucracy works, but slowly), you can start using the TM symbol within three days. Yet, many start-ups, including large ones, delay this, assuming it’s unimportant. But remember that if some other business trademarks the name, slogan or logo you thought was yours, you may have to bid it goodbye, depending on the strength of its claim to the name. For example, if you have a Car rental business in Delhi with plans to start services nationwide, and another business, selling t-shirts across India, trademarks your name before you do, your brand may be locked into Delhi. You may wonder how likely it is that another company would come up with the same name. It probably is rare, but instead of taking such risk get a trademark which cost just ₹6,000.

A trademark gives you rights over the use of specific images, words and designs. However, these rights are limited unless you register you trademark. As this article explains, registering a trademark is not required, but it does have a significant benefits. When you register your mark, you make it easier for the public and other businesses to see your trademark and avoid using the same one.

Further, registration makes it easier to file

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