Trademark Registration

An Overview About trademark registration

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 brand names help the clients in recognizing the brand and the brand value at one instance.The brand name 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 organization's investment made in the logo or brand.

In India Trademarks are registered by-

• Department for Promotion of Industry and Internal Trade.

• Ministry of Industry and Commerce, Government of India.

A Trademark is a sort of Intellectual Property including design, name, sign, word, or expression which recognises 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, organisation or any individual. A Trademark may be seen on a a package,label, or on the product itself. In India, Trade mark 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 organisation can use it as long as it remains in use.

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 recognize the products 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.

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 brand name is your business' protected innovation/immaterial resource. It safeguards the venture made into making trust and faithfulness among your clients

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.

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;

3. Class 35: This includes business management & advertising;

4. Class 41: This includes Entertainment & Education;

Eligibility Criteria for Online Trademark Registration in India

In India, Trademark Registration can be obtained by businesses or individuals or by non-profit organisations. 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.

• Partnership Firms
  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.

• LLP
  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.

• Society or Trust
  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.

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.

Process for the Trade mark Registration online

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

• 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.

• 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).

• 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”.

• 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).

• 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.

• 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 theowner, granting the Trademark owner some rights of the marks.

Various provisions of the Foreign Trade Policy and measures taken by the government in the direction of trade facilitation have been consolidated for the purposes of Import and Export trade. The most important aspect of company’s success is growth. Expansion of business globally could be the very first step towards this. Import Export Code Renewal every year is mandatory now for the IEC License holders.

In the present era of ever growing competition in business in order to survive in the market there are various substitutes available in the domestic market, which are stepping out of their local presence. With back to back innovation and the generation of the new ideas in business, the emergence of e-commerce, business operating in local limit finds it important to operate globally by stepping abroad.

There are several methods to go beyond the domestic level, such as amalgamation for foreign brands, opening franchisee abroad, starting subsidiary or branch office abroad, or through import-export business. Doing business at the global level is not that easy as it sounds. Import Export Code (IEC) once gave can be utilized by the entity all through its existence and it doesn’t necessarily need any kind of renewal. When the organization has gotten IEC, at that point the organization can involve in import export necessities with no issues.

With the rapid upsurge in globalization, nowadays, the opportunity of having a cross border business is also increased. Moreover, an IEC Registration also assists an individual in unlocking the growth opportunities of the international business. Further, every individual who wants to expand his business on a global platform by dealing with the Import and Export business is mandatorily required to obtain IEC Registration.Hence, having an IEC (Import and Export Code) is one of the basic the global level. Moreover, an IEC has various advantages annexed to it. One such benefit of an IEC Code is that it not only assists in unlocking the international market but also helps in increasing the business's growth level.

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.

Trademark Opposition

A trademark opposition is a legal proceeding in which one party attempts to put a stop to a trademark application from being granted. A trademark opposition is filed by third parties who feel your trademark could in some way impact them or their own trademark, in writing, in the form of a notice, with the trademark examiner. If the examiner sees any merit to the opposition, they are to forward the notice to the applicant, who is required to send in a counter statement to the Registrar within 2 months.

If the Registrar feels the counter statement addresses the opposition substantially, they may dismiss the opposition. Alternatively, if the registrar feels there is more to be weighed, they may call for a hearing with both parties appearing before them and presenting their cases. After the hearing, the Registrar will rule on the validity of either the application or the opposition. This ruling can be appealed before the Intellectual Property Appellate Board within 3 months of it being made public.

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.

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