So, you have a business or want to start one, and you are wondering whether trademark registration in India is truly important?
How much time and endeavour did you put into your company? For your service or product? Or enhancing the value of your brand? Have you worked hard to develop your company as a respected and trustworthy name in your clients’ minds?
How would you feel if someone else using your company name without your approval?
Or you discovered that the name you’re using for your company is already registered with another corporation.
Even the worst-case scenario would be…
You’ve spent years building a brand and customer loyalty in the minds of your customers, and now you’ve realised you’re infringing on someone else’s already registered trademark and you won’t be able to use that same name in the future.
It would be an enormous waste of time, effort, and money!!! Would you like to avoid potentially disastrous scenarios that could harm your company’s reputation? Which could mean that all of your hard work in developing a company’s brand name (image) is worthless!!!
Then you should think about safeguarding your company’s name, identity, brand, logo, image, and so on.
A trademark can become a company’s most valuable asset if it is properly used and promoted. As a result, it is critical to think about trademark registration in India.
What is the meaning of a Trademark?
A trademark is a brand or emblem that represents your company in simple words. Apple, McDonald’s, and other well-known brands.
A distinctive symbol, such as a word signature, name, device, label, numerals, or colour combination, is used by the trademark owner to differentiate goods or services or other items of buying and selling identical goods or services from multiple businesses. Manufacturers or service providers use trademarks to identify their products and/or services.
In India, trademarks are registered with the Controller General of Patents, Designs, and Trademarks, Ministry of Industry and Commerce, Government of India, under the Trademark Act, 1999.
“The object of trademark law is to protect the rights of persons who manufacture and sell goods with distinct trademarks against invasion by other persons passing off their goods fraudulently and with counterfeit trademarks as those of the manufacturers,” the Supreme Court stated in Dau Dayal v. the State of UP, AIR 1959 SC 433. In most cases, the only way to get redress is to file a lawsuit in civil court.
The Apex Court decided in Ramdev Food Products (P) Ltd. v. Arvind Bhai Rambai Patel, 2006 (8) SCC 726, that the registration of trademarks is intended to prevent any customer uncertainty. If as a result, things are sold that are made from two different sources, consumers may become confused. It could even be considered public fraud in certain circumstances. A registered trademark owner has an undeniable statutory right to the mark. Any person other than the person in whose name the trademark is registered will have a statutory remedy under Section 21 of the Trade & Merchandise Marks Act, 1958, in the event of such usage.
The Delhi High Court held in M/s J K Oil Mills v. M/s Adani Wilmar Ltd., 2010 (42) PTC 639 (Del.) that it would be necessary to show that the impugned trademark (label) is identical or deceptively similar to the registered trademark to constitute infringement under Section 29 of the Trade Marks Act. And if the plaintiff can show that the contested trademark (label) is identical or deceptively similar to the registered trademark (label), it doesn’t matter if the defendant is using the contested mark/label for goods and services that aren’t similar to those for which the trademark is registered.
Who is eligible to file for a trademark?
Anyone who claims to be the owner of a trademark, whether an individual, a company, a proprietor or a legal entity, can apply. Within a few days, you can file your trademark application and begin using the “TM” symbol. The trademark registry’s formalities can take anywhere from 8 to 24 months to complete. Once your trademark has been registered and a registration certificate has been issued, you may use the ® (Registered sign) next to it. A trademark that has been registered is valid for ten years from the date of filing and can be renewed at any time.
What are the forms of trademarks that can be filed?
- Service Marks Word Marks
- Symbols or logos
- Marks of the Series
- Mark of Certification
- Indicators by Location
- Pattern Marks, Sound Marks
Benefits of a Trademark:
Once a brand becomes well-known, trademark registration offers numerous advantages:
- Your small effort will help them to safeguard a trademark for future generations and build a distinct identity that connects consumers to a specific brand.
- It allows you to establish your ownership of a trademarked word, logo, sound, picture, or even a colour combination.
- It safeguards your “brand” by preventing other firms in the area from registering similar names.
- It is an intangible asset to the firm that increases investor confidence in the company.
Documents required for Trademark Registration?
First, the applicant must sign an Authorization Letter allowing Trademark Registration on their behalf.
Information such as:
- Name of the applicant
- Type of business and goals
- Name of the company, slogan, and logo
- Address for Registration
- When submitting a trademark application for a tagline with simple words, there is no need for a logo; however, if a logo is utilized, it must be presented in black and white format.
- POA: An attorney who is authorised to file a trademark application with the Trademark Registrar on behalf of the applicant.
The Importance of Registering a Trademark:
A trademark gives you a unique identity.
Since the market has been increasingly crowded with more and more companies and brands, it has become nearly hard to distinguish between them. As a result, the only way to distinguish different organizations in terms of exclusivity to attract customers and to be able to stand out is to register an exclusive trademark for one’s brand and therefore develop the company’s reputation around it.
A TM is inexhaustible.
As previously stated, trademark registrations have a 10-year validity period, which may be simply renewed every 10 years before expiration. As a result, a trademark can endure as long as the business exists, if not longer!
A TM is cost-effective.
The cost of registering a trademark is a one-time fee. In addition, the time and procedure for registering a trademark have been significantly decreased.
A trademark is a valuable asset.
A registered trademark is a valuable asset for a business, brand, or entity since it generates immediate goodwill. As a result, the value of a trademark rises in tandem with the company’s expansion. In reality, a registered trademark can be sold, transferred, or purchased, and it can even be used as collateral to secure a loan, just like any other tangible asset.
Checklist to register a trademark?
Making a trademark selection
Your company’s logo should be distinctive and unique in its own right. The next step is to determine which class the trademark belongs to; at this time, it can be categorized as 45 various sorts of goods and services. Products are classified 1–34, and services are classified 35–45.
Search for a trademark
After you’ve selected an acceptable mark for your business, check to see if your chosen print is comparable to one that has previously been registered. You can accomplish this by going to the comptroller general of patents, designs, and trademarks’ online website. You should be able to discover a public search option on the website.
Applying for registration
When applying for trademark registration, you have two alternatives.
Apply to a trademark in the “one” class. That is, the brand will only be registered for the type you have picked. In this case, you’ll need to fill out the TM-1 form. Form TM-1 has a filing cost of Rs. 3,500.
A trademark application for several classes, series, or collective trademarks is the third option. This necessitates the completion of the TM-A form. You can use this form to register a trademark on many levels. There are two cost brackets for filling this form: Registration of a trademark.
9,000 rupees or 10,000 rupees
You will be subject to this if you are not a government-recognized start-up, small business, or person.
5,000 rupees or 4,500 rupees
One falls into this category if you are an individual, a government-recognized small business, or a startup. The fee for filing the form electronically is Rs. 4,500 or Rs. 5,000 if you choose to file the paper physically.
One should be careful not to make any mistakes when filling out the form since this could cause application delays or even rejection. You must fill out all areas and upload a trademark image.
At your leisure, you can file it online or through an agent. If you file online, you’ll get confirmation right away; if you file by hand, it could take up to 15-20 days.
The process of registering a trademark can be completed entirely online.
Step 1: Gather the documents you’ll need for your business.
- Proof of registration: Based on the written business, the company’s directors’ identification verification, and the company’s address proof. In the event of sole proprietorship business, the proprietor’s id evidence, such as a PAN card or an Aadhar card, may be submitted. In the case of enterprises, however, proof of the company’s address is required.
- A soft copy of the trademark is required.
- The proposed mark’s evidence of claim can be used in another country.
- The applicant consents to the use of a power of attorney.
Step 2: Obtaining a trademark registration
You will receive your acknowledgement on the government website immediately after submitting your online application. You will be able to use your Trademark (TM) sign beside your brand name once you have received your declaration.
Step 3: The application for a trademark is examined.
The Registrar will check that you followed the particular limits restricting the use of your brand name, as well as current law if your application is confirmed. Furthermore, there should be no conflict or disagreement between any existing or pending registration brands.
Step 4: Registering your trademark in the Trademarks Journal
Following the completion of the examination procedure, the Registrar will publish your registered trademark in the Indian Trademark Journal. This is an important component of the trademark registration process, and no opposition should be filed within three months (90 days) or 120 days (in some situations) of the date of publication. After then, your brand name would gain acceptance.
Step 5: The trademark registration certificate is issued.
The Registrar will accept your trademark application if no opposition is lodged within 90-day. The Registration Certificate, which contains the Trademark Registry’s seal, is then issued by the Registrar.
The registered trademark symbol can be used alongside your brand name as soon as your certificate is produced.
Status of the Application
One will be granted an allocation number that you may follow online once you have received confirmation of the application’s filing. That will take time, and assuming there are no problems with the documentation, you should find out if your application was granted or rejected in 18-24 months.
The Registrar will issue the Registration Certificate with the Trademark Registry seal if the application has been accepted by the Registrar and no resistance has been filed. The registered trademark can thereafter be used with the brand name.
If the trademark application is rejected, the applicant can request a hearing, when the officer can be persuaded by the submitted documentation, and the application will be approved; if the application is rejected again, the applicant can contact the Intellectual Property Appellate Board.
What Is the Difference Between a Trademark and a Copyright or a Patent?
Trademarks, copyrights, and patents are all ways to safeguard your intellectual property rights. Each, however, safeguards a distinct type of asset.
Copyright is a legal term that refers to the protection of an original work of authorship, such as a piece of writing, a photograph, a drawing, or a song. Copyright safeguards your rights to reproduce, perform, distribute, and display your work, as well as to develop derivative works based on it. Copyright protects your work from the moment it is created, but you can also register it with the United States Copyright Office.
Patent: An invention is protected by a patent. You have a limited time to create and sell your innovation if you have a patent, depending on the sort of patent you have.
Frequently Asked Questions about the trademark registration procedure include the following:
Is there a chance I could get a trademark for an identical word if someone already has one?
You can if one can create a unique logo that includes your name. For example, BMW’s name is within the emblem, or you can add a little prefix to the name.
Which name may I use to register a trademark?
It can be filed under whatever name you want. Entrepreneurs, on the whole, prefer to register their trademarks under their names. Because the company’s name is used, it implies that the shareholders also own it.
When is it permissible to use the trademark symbol TM in India?
It means you’re claiming to be the owner of the trademark. The use of the symbol TM is not prohibited in India.
What is the best way to choose a good trademark?
- It should be simple to say, spell, and remember if it is a word. Invented or created phrases, as well as unique geometrical designs, make excellent trademarks.
- Selecting a geographical name, a common personal name, or a surname should be avoided. No one can hold a monopoly on it.
- Avoid using terms or phrases that praise the quality of a product (such as best, perfect, super etc.)
- It’s a good idea to do a market survey to see if the same or similar mark is being used elsewhere.
What are the costs associated with a trademark registration?
The following are the government fees for trademark registration:
If the applicant is an individual, a startup, or a small business, the E-Filing charge is Rs 4500, whereas the physical filing fee is Rs 5,000.
Fees for E-Filing would be Rs 9000 in all other situations, and fees for traditional filing would be Rs 10,000.
What the distinction is between R and TM?
Any individual or corporation can use the TM Symbol to signify that a specific term, phrase, or logo is intended to act as an identification for the source of a product or service. You do not need to have a trademark registration to use it, and many businesses will use the TM symbol for new products or services before and throughout the application process.
This word, phrase, or emblem is an R symbol, indicating that it is a registered trademark for the product or service. It can only be used by the owner or licensee in the case of registered trademarks.
Is it possible to trademark a number?
Yes, you can trademark a number; however, the only need is to use the number as a brand for your products or services. It must be distinct and capable of distinguishing the product or service from that of others.
Is it possible to register a sound or a smell as a trademark? What criteria are used to define these marks?
Yes, sounds and odours can be recorded as a mark. They should, however, be able to be graphically replicated and should be distinct. For sound markings, a recording in MP3 format of no more than thirty seconds in length must be given, coupled with a graphical depiction of the notations. Along with the sample, the smell can be expressed as a chemical formula.
Is the trademark subject to cancellation due to non-use?
Yes, a registered trademark can be taken away if it isn’t used. A trademark may be removed based on non-use if
- The trademark was registered without any bona fide intention and was not used until three months before the date of the application for removal; or
- The trademark was not used for a continuous period of five years from the date of registration of the trademark and the application was made after three months from the expiry of the five years.
Trademarks can take the form of images, patterns, or even verbal statements. Because a trademark is considered intellectual property, it aids in the protection of a company’s intangible assets from infringement and exploitation. With extensive experience in online trademark registration and compliance, Compliance Calendar LLP can assist you with filing a trademark and effectively transparently with end-to-end seamless services. You can reach out to us at [email protected] or 9988424211