A trademark is a logo or a symbol used by an owner to represent his business. With a registered trademark, you can stop others from using your trademarked business name/logo, etc. with regards to goods or services it is registered. The article discusses the steps involved in the registration of the trademark and the importance of registration of a trademark.
By: Akshat Badjatya, Renaissance Law College
Trademark is a brand name. A trademark or service mark includes any word, name, symbol, device, or any combination, used or intended to be used to identify and distinguish the goods/services of one seller or provider from those of others, and to indicate the source of the goods/services.
What is a trademark?
In simple terms, a trademark is a brand or logo which represents your business.
A visual symbol like a word signature, name, device, label, numerals, or combination of colors used by the owner of the trademark for goods or services or other articles of commerce to distinguish it from other similar goods or services originating from different businesses. A trademark can be a word, symbol, logo, and brand name, wrapper, packaging labels, tagline, or a combination of these and are used by manufacturers or service providers to identify their products and/or services. It is used to distinguish the owners’ products or services from those of its competitors.
Example of trademarks
Coca-cola and Pepsi are two trademarks from the same industry (beverages) which distinctly identify the source or origin of the goods as well as an indication of quality.
Trademarks in India are registered by the Controller General of Patents Designs and Trademarks, Ministry of Commerce and Industry, Government of India.
Trademarks are registered under the Trademark Act, 1999, and provide the trademark owner the right to sue for damages when infringements of trademarks occur.
However, any trademark, which is identical or deceptively similar to an existing registered trademark or trademark for which application for registration has been made, cannot be registered. Also, a trademark that would likely cause deception or confusion or is offensive may not be registered.
Who can apply for a trademark?
Any person which can be an individual, company, proprietor, or legal entity claiming to be the owner of the trademark can apply. The trademark application can be filed within a few days and you can start using the “TM” symbol. And the time required for the trademark registry to complete formalities is 18 to 24 months. You may use the “®” (Registered symbol) next to your trademark once your trademark is registered and the registration certificate is issued.
Once registered, a trademark is valid for 10 years from the date of filing, which can be renewed from time to time.
Functions of a trademark
- It identifies the service or product and its source
- It guarantees its quality
- helps in Advertisement for service or product
Different types of trademark
- A name (including personal or surname of the applicant or predecessor in business or the signature of the person).
- A coined word or an invented word or any arbitrary dictionary word or words, not being directly descriptive of the character or quality of the goods/service.
- Alphanumeric or Letters or numerals or any combination thereof.
- Image, symbol, monograms, 3-dimensional shapes, letters, etc.
- Sound marks in audio format.
Documents required for filing a Trade Mark Application in India
- Trademark or logo copy.
- Applicant details like name, address, and nationality, and for company; the state of incorporation.
- Goods or services to register.
- Date of first use of the trademark in India, if used by you before applying.
- Power of attorney to be signed by the applicant.
The procedure for registering a trademark in India
Step 1: Trademark Search
(Time: about 4 hours) Cost: Rs 0 to Rs. 500
This search is to check whether your business name or logo is similar to other already registered trademarks. Generally, a trademark agent or attorney conducts this search with the Trademark Office to check if there are any similar trademarks already registered under that particular class. There are two kinds of search: online and offline. It is recommended that you get both the searches done. Once found to be unique, you can proceed to the next step
Step 2: Create a Trademark Application
(Time required: 2-3 days)
Based on the results of the search conducted, the trademark attorney will draft the trademark application, provided that your business name/logo is found to be unique. If someone already has the same or similar trademark, you need to change yours. Or if you are of opinion that the trademark is rightfully yours and you are using it for a long time even before other party trademark registration.
You can start using the “™” symbol as soon as you file the form of a trademark application.
Step 3: Trademark Registration
(Time 8 to 24 months)
Cost: Government fee is Rs. 4,500/- in case of Individual/ Startup/ Small Enterprise (it would be 9,000/- in all other cases) and trademark attorney professional fee is Rs. 3500/- per application per class.
- The Trademarks Office will first check your application to see if it’s already been taken. If it has, a trademark objection will be raised.
- If it has no objection, it makes an advertisement in the Trade Marks Journal.
- If there is no opposition from other businesses in the next four months, your trademark is registered around six months later.
Steps you need to take to register your trademark in India
- Select and authorize a trademark agent or attorney to represent you.
- The trademark agent or attorney has to conduct a search.
- Depending upon the results of the search, the trademark agent or attorney will draft your trademark application. In case someone already has the same or similar trademark, you may have to change yours.
- The trademark agent or attorney will file your trademark application with the Trademark Office and send you the receipt.
- After a few days, the trademark agent or attorney will send you the Original Representation Sheet of your trademark as it has been filed with the Trademark Office.
It can take anywhere between 8 months to 2 years for the Trademark Office to decide whether or not to grant you the trademark; if there are objections from the trademark office or anyone else, it may take longer.
A registered trademark is published in the Trademark Journal.
Why do you need to consider registering a trademark for your business?
- Even the biggest businesses like Coca-Cola, Apple protect their business through trademark.
- The trademark would be an important asset for your business and contributes to the goodwill generated.
- With a registered trademark, you can stop others from using your trademarked business name/logo, etc. with regards to goods or services it is registered.
- Trademark can be considered just like any other form of an asset like real estate, as it can be sold, licensed, or assigned.
- It guarantees the identity of the origin of goods and services.
- It stimulates further purchases.
- It serves as a badge of loyalty and affiliation.
- It may enable the consumer to make a lifestyle or fashion statement.