A Trade Mark popularly known as brand name in layman’s language ) is a visual symbol which may be a word to indicate the source of the goods, a signature, name, device, label, numerals, or combination of colours used, or services, or other articles of commerce to distinguish it from other similar goods or services originating from another.
A trade mark provides protection to the owner of the mark by ensuring the exclusive right to use it or to authorize another to use the same in return for payment. It distinguishes the products and services of one from the other (Competitors).
The Trade Marks Act, 1999 has been enacted as indicated in the Preamble to the Act to amend and consolidate the law relating to trade marks, to provide for registration and better protection of trade marks for goods and services and for the prevention of the use of fraudulent marks.
The Trade Mark Rules, 2017 have been notified and have come into effect from March 6, 2017. These Rules, which replace the erstwhile Trade Mark Rules 2002, will streamline and simplify the processing of Trade Mark applications.
Trade mark protection is enforced by the courts, which in most systems have the authority to block trade mark infringement.
SOME IMPORTANT KEYWORDS:
Mark: “Mark” includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof”.
Service: A service mark is the same as a trade mark except that it identifies and distinguishes the source of a service rather than a product.
Collective Mark: “Collective mark” under Section 2(1)(g) of the Act means a trade mark distinguishing the goods or services of members of an association of persons (not being a partnership within the meaning of the Indian Partnership Act, 1932) which is the proprietor of the mark from those of others.
DURATION FOR TRADEMARK APPLICATION PROCESS
It takes around 12-18 months for the registration of the Trademark. However, if there is some objections from the Registry or from the third parties it may take little bit longer.
TRADEMARK REGISTRATION TENURE
The validity of the Trademark once registered is for 10 Years. And after that one need to renew it otherwise the mark expires.
An extended period of 6 months is provided for the renewal of the trademark; however the applicant needs to pay an extra fee/ late fee.
SPECIFICATION OF THE GOODS AND/OR SERVICES FOR WHICH REGISTRATION IS SOUGHT
An application for registration of a single trade mark may be made in respect of goods and/or services in one or more classes.
Where the application is in respect of more than one class the goods and/or services it must be grouped together according to class number.
A class number must be selected for each group of goods and/or services. Where the application is in respect of more than one class the goods and/or services must be grouped together according to class number and the groups of goods and/or services must be presented in ascending numerical order of the class number.
Any person “claiming to be the proprietor” of the trade mark ‘used’ or ‘proposed to be used’ by him may make an application in the prescribed manner for registration of his trade mark.
“Any person” is wide enough to include any individual, company, or association of persons or body of individuals, society, HUF, partnership firm, whether registered or not, Government, trust etc.
1. Search for TM:
The applicant need to firstly do a public search to check whether the Trademark he wants to apply shall not be same or similar to the earlier trademarks
2. Trademark Class:
The applicant need to identify the right class in which his goods/ services falls. In total there are 45 classes in which the proposed Trademark can falls.
3. Details Required:
In case of Individual:
The full name of the applicant is required. A business name or trading style is not acceptable as the name of an individual. This is because a business name or trading style does not denote the nature of applicant (legal entity) – it is more in the nature of an alias for the purposes of a trade mark application: If a trading style or business, name is included on the Application in addition to the name of an individual applicant, those details will be captured separately.
In case of Joint owners:
In case of joint owners, the full name of each of the joint owners, whether individuals or companies, is essentially required. A trading style or business name is not acceptable as the name of the joint owners and, if given in addition to the joint owners, such names will be recorded separately.
In case of Partnership Firm:
The names of all the partners are essentially required to be mentioned in an application filed by a partnership firm.
In case of Companies:
The name under which a company is incorporated is required. A trading style or business name, if given, will be recorded separately. Abbreviations of the type of company are acceptable. Annex Al at the end of this Part contains a list of abbreviations of types of companies which are recognized as bodies corporate
4. Application for the Registration of the Trademark:
The application for the registration of the Trademark need to be in TM-1. The trademark application can be filed at one of the five Trademark Registrar Office (Chennai, Ahmedabad, Mumbai, Kolkata, and New Delhi) having jurisdiction over the State or online. TM applications can be filed online through Registered Agent or Attorney.
5. Checklist for TM
1. Symbol, Logo or the Trademark to be registered.
2. Name address, mobile no. and email id of the trademark owner.
3. Description of the goods or services
4. Conditions of Usages
5. Date Since Trademark is used.
6. An affidavit, in case TM is already under use.
7. MSME Certificate, in case of SME Enterprises.
8. Power of Attorney in favor of Agent or Attorney
9. Any other information linked with TM.