A trademark is trade symbol defines rights over the mark, the rights can be claimed on First to file basis and on the other hand prior use is important to claim rights. All intellectual property right are territorial right in India.
Trademark identifies the brand owner of a particular product or service. Trademarks can be assigned to others for use. The unauthorized usage of trademarks by producing and trading counterfeit consumer goods is known as brand piracy.
1. Registered owner has the following Security for their marks:
a. cost effective way to use of your name or logo
b. it’s similar to a certificate of title like in relation to land
c. reduces the risk of being prevented from using your name or logo by others
2. National Treatment as Geographical coverage
Registering your trademark usually gives you nation-wide protection.
3. Registered owner has an option to prevent others
Trademark registration prevents other traders from using trademarks that are similar or
identical to yours in relation to goods and services like yours
|Sr. No.||Particulars||Individual / MSME / Start Up Company||Others|
|1.||Online Filing of An Application||Rs. 4,500||Rs. 9,000|
|2.||Physical Filing of An Application||Rs. 5,000||Rs. 10,000|
1. Trademark Search through www.ipindia.nic.in
Trademark search helps you to know if there are similar trademarks available and it gives you a fair picture of where your trademark stands.
2. Filing Trademark Application in India
After you are sure that your chosen brand name or logo is not listed in the Trademark Registry India, you can opt for registering the same. The first step is to file a trademark application form at the Trademark Office, India. The Indian trademark offices are located at Chennai, Delhi, Mumbai, Kolkata. Nowadays, filing is mostly done online. Once the application is filed, an official receipt is immediately issued for future reference.
3. TM Examination
After a trademark application is filed, it is examined by the examiner for any discrepancies. The examination might take around 12-18 months. The examiner might accept the trademark absolutely, conditionally or object.
4. TM Publication
The step of publication is incorporated in the trademark registration procedure so that anyone who objects to the registering of the trademark has the opportunity to oppose the same. If, after 3-4 months from publication there is no opposition, the trademark proceeds for registration. In case there is opposition; there is a fair hearing and decision are given by the Registrar.
5. Registration Certificate
Once the application proceeds for trademark registration, following publication in Trademark Journal, a registration certificate under the seal of the Trademark Office is issued.
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 for prior use.
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.
The trademark can be renewed perpetually after every 10 years. Hence, your logo or brand name registration can be protected perpetually.
Trademark Objection Once a trademark application is filed a Trademark Examiner examines the application and makes a search of earlier trademarks which are identical or similar to the mark being examined. The findings of the Trademark Examiner are compiled as the trademark examination report.
Use of Incorrect Trademark Form
In case the trademark application is not made on the proper form, an objection as following is raised by the Trademark Examiner. “The application is made on form TM-A.
Incorrect Trademark Applicant NameIncorrect Trademark Applicant Name
The trademark applicant name must be entered properly in an application. In case of incorrect trademark applicant name, the Trademark Examiner would raise an objection as follows: “The application appears to have been filed in the name of a partnership firm, names of all Partners of the firm should be brought on record by filing a request form TM-M”
Failure to File Trademark Form TM-48
Whenever a trademark application is filed by a Trademark Attorney or Trademark Agent on behalf of the applicant, Trademark Form TM-48 must be attached. In case Form TM-48 is not attached or incorrectly executed, the Trademark Examiner would raise and objection as following: “The application has been submitted by a person other than the applicant, a duly stamped Power of Attorney in favour of a particular agent should be filed.”
Incorrect Address on Trademark Application
In case a trademark application has not mentioned the principal place of business of the applicant or if the applicant’s address for service in India is not mentioned, then an objection can be raised as under: “The Principal Place of business of the applicant should be brought on record by filing a request on form TM-M” or “The applicant’s address for service in India should be brought on record by filing a request on form TM-M, since the applicant has no principal place of business in India.”
Vague Specification of Goods or Services In a trademark application
If the specification of goods or services is too vague or encompasses a large variety of goods and services in a class, then an objection can be raised by the Trademark Examiner as follows: “The specification of goods/services mentioned in respect of class xx, is very vague and wide. You should provide exact items in respect of which the trademark is sought to be registered, by filing a request on form TM-M”
Same or Similar Trademark Exists
In case, same or similar earlier trademarks of different trademark owner are found on records in respect of same or similar description of goods or services, then an objection is raised as follows: “The trademark applied for registration is not registrable under Section 11(1) of the Trade Marks Act 1999 since identical or similar marks in respect of identical or similar description of goods or services are there on records and because of such identity or similarity of marks and goods or services there exists a likelihood of confusion on the part of the public.”
Trademark Lacks Distinctive Character
Trademarks which are not capable of distinguishing the goods/services of one person from those of another person are devoid of distinctive character and thus liable for objection under absolute grounds for refusal of trademarks. To overcome a trademark objection under absolute grounds for refusal, the trademark applicant can submit proof to show that the mark has acquired a distinctive character by virtue of its prior use.
Trademark is Deceptive
An objection can be raised by the Trademark Examiner, if the mark has potential for deception of the public by reason of something inherent in the mark itself or in its use, like nature, quality or geographical origin of the goods or services. An objection as to deceptive trademark can be overcome if the applicant seeks to exclude goods or services from the specification by filing Form TM-M.