Trademark

A trademark, also known as a brand name, that represents a company’s products or services. It can be a word, a name, a picture, a label, a number, or a combination of colors. The purpose of a trademark is to help people easily identify and distinguish the company’s products or services from those of other companies.
The legal requirements to register a trademark under the Act are:
1. The chosen mark should be able to be represented visually on paper.
2. It should be capable of distinguishing the goods or services of one from those of others.
3. The mark must be used or intended to be used in connection with goods or services to indicate a connection in the course of trade between the goods or services and the person who has the right to use the mark, with or without identifying that person.

1. Unique: Choose a trademark that is unique and not commonly used in the market. Avoid selecting generic or descriptive terms that describe the product or service being offered.
2. Memorable: Select a trademark that is easy to spell, remember and pronounce. It should be catchy and simple enough for people to recall it easily.
3. Distinctive: The trademark should stand out and distinguish the product or service from others in the market. It should be recognizable and easily associated with the product or service being offered.
4. Avoid adopting laudatory word or words that describe the quality of goods (such as best, perfect, super etc.)
5. Future-proof: Choose a trademark that will remain relevant and effective in the long term. Avoid trendy or time-bound names that may become outdated over time.
6. Avoid selection of a geographical name, common personal name or surname. No one can have monopoly right on it.
7. Always conduct a market survey to check if same/similar mark is used in the market. Check if it is already registered by someone else in the market.

1. Under modern business condition a trademark performs four functions
2. It identifies the goods / or services and its origin.
3. It guarantees its unchanged quality
4. It advertises the goods/services
5. It creates an image for the goods/ services.

Fanciful marks are unique terms that have been created for the sole purpose of serving as a trademark, and they hold no meaning other than as a mark. They are typically made-up words or nonsense words that become associated with goods or services, and represent a valuable investment in branding. These marks are considered to be the strongest type of mark and are the easiest to obtain if seeking trademark registration. Examples of fanciful marks include GOOGLE, EXXON, and EBAY.

On the other hand, arbitrary marks are terms that hold a common meaning, but have no relationship to the goods or services being sold. These marks are also considered strong and are protectable under trademark law. Examples of arbitrary marks include APPLE (for computers), LOTUS (for software), and SUN (for computers).

1. Any name (including personal or surname of the applicant or predecessor in business or the signature of the person), which is not unusual for trade to adopt as a mark.
2. An invented word or any arbitrary dictionary word or words, not being directly descriptive of the character or quality of the goods/service.
3. Letters or numerals or any combination thereof.
4. The right to proprietorship of a trademark may be acquired by either registration under the Act or by use in relation to particular goods or service.
5. Devices, including fancy devices or symbols
6. Monograms
7. Combination of colors or even a single color in combination with a word or device
8. Shape of goods or their packaging
9. Marks constituting a 3- dimensional sign.
10. Sound marks when represented in conventional notation or described in words by being graphically represented.

Registering a trademark provides the owner with the exclusive right to use the trademark in connection with the goods or services for which it is registered. The owner can indicate this exclusive right by using the symbol (R) and can take legal action against any infringement of their trademark in the appropriate courts in the country. However, the exclusive right is subject to any conditions entered on the register, such as limitations on the geographic area of use. In cases where two or more persons have registered identical or nearly similar marks due to special circumstances, such as honest concurrent use, the exclusive right does not operate against each other.

1. For filing new applications there are prescribed forms depending on the nature of application such as Form TM-1, TM-2, TM-3, TM-8, TM-51 etc. Fees: Rs.4000/
2. To file a Notice of Opposition to oppose an application published in the Trade Marks Journal (FormTM-5). Fees: Rs. 2,500/- for each class covered
3. For Renewal of a Regd. trademark (Form TM-12 ). Fees: Rs.5,000/-
4. Surcharge for belated renewal (Form TM-10).Fees: Rs. 3,000/-
5. Restoration of removed mark (Form TM-13) Fees: 5,000/-
6. Application for rectification of a registered trademark (Form TM-26) Fees: Rs. 3,000/-
7. Legal Certificate (Form TM-46) (Providing details of entries in the Register) Fees: Rs.500/-
8. Copyright search request and issuance of certificate (Form TM-60) Fees: Rs, 5,000/-.

Trademark searches are the process of conducting an investigation to determine if a particular trademark is already in use or registered by another party for the same or similar goods or services. The scope of a trademark search can be broad or narrow, depending on the desired outcome. A comprehensive search will cover all possible avenues of trademark protection and consider marks that may be remotely similar to the mark being searched. The search strategy should take into account various factors, including the nature of the mark, the type of goods or services it covers, the timeline for bringing the mark to market, and the resources available to the applicant. Proper trademark searches are crucial to ensure that a proposed mark does not infringe on the rights of an existing trademark owner and can help avoid costly legal disputes in the future.

The process of trademark registration can be lengthy and involves multiple stages. To ensure that clients do not miss out on any important steps that could potentially impact the registration of their trademark, trademark watch services are available. These services involve closely monitoring each stage of the registration process, as well as any subsequent developments, and taking necessary actions to prevent any issues. By utilizing trademark watch services, clients can have peace of mind that their trademark registration is being handled efficiently and effectively.

Obtaining a trademark registration is a time-consuming process and typically takes anywhere from 18 to 24 months to complete, assuming there are no objections or oppositions to the application. However, a trademark application number is usually assigned within one or two days of filing, allowing the applicant to track the progress of their application.

The fees charged by the government for Trademark registration are as follows: For individuals, startups or small enterprises, the E-Filing fee is Rs. 4,500, while the physical filing fee is Rs. 5,000. For all other applicants, the E-Filing fee is Rs. 9,000, and the physical filing fee is Rs. 10,000.

By following the below-given steps you can Check Trademark Status
Step 1: Access IPINDIA Website.
Step 2: Select National/IRDI Number.
Step 3: Provide Trademark Application Number.
Step 4: View Trademark Application Information

Whether you can take legal action against someone using your trademark depends on whether your mark is registered or not. If your mark is not registered, you would have to rely on what is known as the common law action of “passing off.” This requires you to prove that you have a reputation or goodwill associated with your mark, that the other party’s use of a similar mark has led to confusion among consumers, and that you have suffered consequential damage. If your mark is registered, you can claim trademark infringement, which is generally easier to establish. In many cases, a strongly worded letter and subsequent negotiations can resolve the issue without resorting to the courts.

When two parties are using the same trademark without registration, they both have limited common law rights within their respective geographic areas. However, if both parties have overlapping areas of business and use of the trademark, the party that can prove prior use of the trademark will generally have superior rights. This means that the party with prior use can legally prevent the other party from using the same or similar trademark in that area.

1. a trademark application may be refused on many grounds, which are as follows:
2. If a trademark is not capable of distinguishing the goods or services of a person from those of another person
3. If it consists exclusively of marks or indications which may serve in trade to designate the kind, quality, quantity, intended purpose, values, geographical origin or the time of production of the goods or rendering of the service or other characteristics of the goods or service.
4. If it consists exclusively of marks or indications which have become customary in the current language or in the bonafide and established practices of the trade.
5. Also the following trademark may be refused if-
6. It is of such nature as to deceive the public or cause confusion.
7. It contains or comprises of any matter likely to hurt the religious susceptibilities of any class or section of the citizens of India.
8. It comprises or contains scandalous or obscene matter.
9. Also, if a trademark consists exclusively of the following, it may be rejected-
10. The shape of goods which results from the nature of the goods themselves, or
11. The shape of goods which is necessary to obtain a technical result, or
12. The shape which gives substantial value to the goods

When the status of a trademark shows “Provisional refusal confirmed,” it means that an objection was raised during the examination process or an opposition was received after the trademark was published. As a result, the Indian Trademark Registry has communicated the provisional refusal to the International Bureau of WIPO. The trademark applicant is given an opportunity to respond to the provisional refusal within one month of receiving it. If you disagree with the decision of the Trademark Registry, you can challenge it by filing an appeal with the Boards of Appeal or Court of Appeal. It is recommended to hire a qualified attorney who can represent you and argue on your behalf in front of the appellate authority. By doing so, you may have a better chance of protecting your trademark.

1. While registering for a trademark, the following are a few categories, which cannot be registered as Trademark and if you do so, your Trademark might get rejected.
2. Names and surnames: Names or surnames cannot be used as a trademark in India if they do not possess a distinctive character.
3. Numericals: Numbers can’t be said to selective to be utilized as a trademark, as such.
4. Geographical Location: Geographical locations cannot be used as trademarks.
5. Color: Melodic notes as melodic documentations are acknowledged as trademarks in India.
6. Smell: Smell cannot go through the process of Trademark Registration in India. It is difficult to distinguish between different smells.
7. Devoid of distinctive Nature: The sign of an item or administration which is not of an unmistakable sort would not be a trademark.

In India, only the owner of a registered trademark is permitted to use the symbol ®. It is illegal to use the symbol ® unless the mark has been officially registered. The symbol TM, on the other hand, indicates that the person claims ownership of the trademark. There is no restriction on using the symbol TM in India.