A trademark (also written trade mark or trade-mark) is a type of intellectual property consisting of a recognizable sign, design, or expression which identifies products or services of a particular source from those of others, although trademarks used to identify services are usually called service marks. The trademark owner can be an individual, business organization, or any legal entity. A trademark may be located on a package, a label, a voucher, or on the product itself. For the sake of corporate identity, trademarks are often displayed on company buildings. It is legally recognized as a type of intellectual property.
Now, I will brief you with all the important questions which to your mind while going through trademark concept in India. I have tried to cover the basic important questions related to it in simple question answer format.
What is Trademark?
As per The Trademarks Act, 1999 and other amendments made from time to time. A trade mark” means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colour/(s).
What is registered trademark?
As per The Trademarks Act, 1999, a registered trade mark or a mark used in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services, as the case may be, and some person having the right as proprietor to use the mark
Which law or statutes regulate trademark in India?
The trademarks in India are regulated under The trademarks Act, 1999 and The Trademarks (Amendment) Act, 2010.
The Trade Marks Registry was established in India in 1940 and presently it administers the Trade Marks Act, 1999 and the rules thereunder. It acts as a resource and information centre and is a facilitator in matters relating to trade marks in the country. The objective of the Trade Marks Act, 1999 is to register trade marks applied for in the country and to provide for better protection of trade mark for goods and services and also to prevent fraudulent use of the mark. The main function of the Registry is to register trade marks which qualifies for registration under the Act and Rules.
What are advantages of having a trademark?
- Exclusive Rights:
The owner of Registered Trademark enjoys exclusive right over the trademark. The owner can use the same for all the products falling under the class(es) applied. Further, the owner can enjoy the sole ownership of the Trademark and can stop other from the unauthorised use of the Trademark under the same class where it is registered. It gives the right to sue the unauthorized user of the Trademark Registered.
- Builds trust and Goodwill:
The established quality of your product and services are known by everyone through the trademark and which establishes trust and goodwill among the customers in market. It helps in creating permanent customers who are loyal and always opt for the same brand.
- Differentiates Product:
It makes easy for customers to find your products. It makes your product and identity of products different from that of the existing and foreseen competitors and acts as efficient commercial tool. The logo can communicate your vision, quality or unique characteristic of your company and any organisation.
- Recognition to product’s Quality:
It gives recognition to the quality of the product. Customers attach the product’s quality with the brand name and this image is created in the market about the quality of a particular brand which helps in attracting new customers as they can differentiate the quality of a product by the logo/brand name.
- Creation of Asset:
Registration of Trademark creates an intangible asset i.e. Intellectual Property for an organisation. Registered trademark is a right created which can be sold, assigned, franchised or commercially contracted. Also, the Trademark is an intangible asset which gives the advantage to the organisation.
- Use of ® symbol:
Once the trademark is registered you can use the ® symbol on your logo stating that it is a registered trademark and no one can use the same trademark. It is exclusive of all types of usages as well as rights. If someone else use the trademark then you can also sue the party if the trademark is registered.
- Protection against infringement:
No competitor or other person can use the wordmark or logo registered by you under trademark. However, if in any case one uses it without the approval of the owner of trademark or make any deceptive use of same, the owner can get the legal protection under the Act and stop the person doing so.
- Protection for 10 Years at low cost:
Online Trademark registration is done on a very low maintainability cost. Once you register the trademark you have to just pay the maintenance cost and renewal cost which is after 10 years of registering the trademark. It is cost efficient and helps your company create an unique image.
- Attract Human Resources:
Young minds aspire to join big Brands as it acts as a magnate. It inspires the positive image of the organisation and thus candidates are attracted towards them easily. This reduces the cost towards hiring and related activities.
What are the products or services, for which a trademark can be applied for?
All the goods and services are covered under trademark Act, 1999 also note that the Register shall classify goods and services, as far as may be , in accordance with the international classification of goods and services for the purposes of registration of Trade Marks.
How to apply for Trademark?
A trademark application is made in both modes offline and online. But there is some difference of Departmental Fees, the fees is a little higher in case of offline mode. The application is followed by Form TM -48 for Authorisation of an Agent along with supporting documents which differs in case of Proprietor, Company or Partnership or as the case may be.
What are the fees associated with applying for trademark?
The Departmental fees for applying for Trademark is as follows:-
1. In case of proprietor: INR 4500/-
2. In any other case: INR 9000/-
One can even reduce the departmental fees by half if the applicant is registered under Ministry of Micro, Small and Medium Enterprize as MSME.
Where to make the application in case of offline trademark application?
The application shall be filed in the office of the Trade Marks Registry within whose territorial limits the principal place of business in India of the applicant or in the case of joint applicants the principal place of business in India of the applicant whose name is first mentioned in the application as having a place of business in India, is situated.
How long it takes to get a trademark?
The process to acquire a trademark generally required four to five months as there is procedural part. Let me explain you this in simple steps as follows:-
- Submission of application to department.
- On vetting of application, the department Accepts the application.
- After the acceptance, the department publish the trademark, the applicant applied in Official Gazette of India. This publication is made to announce the public at large, that we are about to register this published trademark and all the rights to use this mark shall be vested with the applicant. If any person has any objection with same, then the reply can be submitted to department.
- If no objection is received within a period of One Hundred and Twenty days (120) from the publication in Official Gazette, then the Departments registers the Trademark on the name of Applicant and he then can use the mark ® on his product or services Trademark.
With so many benefits and to protect your trademark where every single day, a new person starts their business, it becomes pertinent to acquire a trademark and protect your Brand value which a businessman is building or have already build for its goods and services over a period of time.
That’s why all the big business protect their brand name or mark by applying for trademark at earliest to avoid any kind of litigation in future for the imitation of their hard-earned Trademark/(s) recognition.
Disclaimer: The above article briefs the important questions while going through Trademark application, its procedure and documents required for registration. Depending upon the different type of entity, one is running their business and the segment of business, the documents while applying for trademark varies. In no case, the author shall not liable for any direct, indirect, special or incidental damage resulting from, arising out of or in connection with the use of the information.
(The Author is Corporate Consultant and provides varied array of services including Start-ups, Secretarial, Legal, Intellectual property, taxation, Audit, GST, Book keeping and other ancillary advisory service in Delhi, Chandigarh as well as The National Capital Region (NCR) and can be contacted through mail:- triptishakyacs2017@gmail.com)
Author Bio
Thank you for writing about Indian Tradmark.