TRADEMARK REGISTRATIONTRADEMARK REGISTRATION- By aapkaconsultant.com

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WHAT IS A TRADEMARKWHAT IS A TRADEMARK• A ‘Mark` may consist of a word or invented word, signature, device, letter, numeral, brand, heading,

label, name written in a particular style, the shape of goods other than those for which a mark is proposed to be used, or any combination thereof or a combination of colors and so forth. Subject to certain conditions, a trademark may also be symbolized by the name of a person, living or dead.Under the new law, service marks can be registered as well as trademarks.

• For the purpose of registration, a mark chosen should be capable of distinguishing goods or services of one person from those of the others. Further it should not be deceptively similar to an existing mark of another person and not the one expressly prohibited under the Act. 

• The marks devoid of any distinctive character, or which are only indicative of the kind, quality, quantity, purpose, value or geographical origin of the goods, or which are marks already in vogue in the trade due to their customary use may not be registered. But these disqualifications do not apply to marks, which have already acquired distinction due to their popularity and consistent use. Internationally acclaimed brand names are freely available for use in India. 

• WHAT IS COVERED UNDER TRADEMARKS

A trademark is a mark used in relation to goods or services so as to indicate a connection in the course of trade between the goods or services and some person having the right as proprietor to use the mark.

HOW TO SELECT A TRADEMARK• If it is a word it should be easy to speak, spell and remember.• The best trade marks are invented words or coined words.• Please avoid selection of a geographical name. No one can

have monopoly right on it.• Avoid adopting laudatory word or words that describe the

quality of goods (such as best, perfect, super etc)• It is advisable to conduct a market survey and a search at

Trademark office to ascertain if same/similar mark is used in market.

WHAT ARE THE TYPES OF WHAT ARE THE TYPES OF TRADEMARKS THAT CAN BE REGISTEREDTRADEMARKS THAT CAN BE REGISTERED

• Under the Indian trademark law the following are the types of trademarks that can be registered:

• Product trademarks: are those that are affixed to identify goods.• Service trademarks: are used to identify the services of an entity, such as

the trademark for a broadcasting service, retails outlet, etc. They are used in advertising for services.

• Certification trademarks: are those that are capable of distinguishing the goods or services in connection with which it is used in the course of trade and which are certified by the proprietor with regard to their origin, material, the method of manufacture, the quality or other specific features

• Collective trademarks: are registered in the name of groups, associations or other organizations for the use of members of the group in their commercial activities to indicate their membership of the group.

WHAT ARE DIFFERENT TYPES OF WHAT ARE DIFFERENT TYPES OF TRADEMARKS AVAILABLE FOR ADOPTIONTRADEMARKS AVAILABLE FOR ADOPTION• 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.

• An invented word or any arbitrary dictionary word or words, not being directly descriptive of the character or quality of the goods/service.

• Letters or numerals or any combination thereof.• The right to proprietorship of a trade mark may be acquired by either registration

under the Legislation or by use in relation to particular goods or service.• Devices, including fancy devices or symbols• Monograms• Combination of colors or even a single color in combination with a word or device• Shape of goods or their packaging• Marks constituting a 3- dimensional sign.• Sound marks when represented in conventional notation or described in words by

being graphically represented.

WHAT ARE LEGAL REQUIREMENTS FOR WHAT ARE LEGAL REQUIREMENTS FOR REGISTRATION OF TRADEMARK IN INDIAREGISTRATION OF TRADEMARK IN INDIA• The legal requirements to register a trade mark under the Legislation are:• The selected mark should be capable of being represented graphically (that is

in the paper form).• It should be capable of distinguishing the goods or services of one undertaking

from those of others.• It should be used or proposed to be used mark 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 and some person have the right to use the mark with or without identity of that person.

• Term of registration of a trademark is ten years, which may be renewed for a further period of ten years on payment of prescribed renewal fees.

• Non-user of a registered trademark for a continuous period of five years is a ground for cancellation of registration of such trademark at the behest of any aggrieved party. 

WHAT ARE BENEFITS OF TRADEMARK REGISTRATION

The registration of a trade mark confers upon the owner the exclusive right to the use of the registered trade mark and indicate so by using the symbol (R) in relation to the goods or services in respect of which the mark is registered and seek the relief of infringement in appropriate courts in the country. The exclusive right is however subject to any conditions entered on the register such as limitation of area of use etc. Also, where two or more persons have registered identical or nearly similar mark due to special circumstances such exclusive right does not operate against each other.

REMEDIES FOR INFRINGEMENT OF TRADEMARK IN INDIA AND PASSING-OFF

 Two types of remedies are available to the owner of a trademark for unauthorized use of his or her mark or its imitation by a third party. These remedies are:

• an action for infringement' in case of a registered trademark; and• an action for passing off' in the case of an unregistered trademark• While former is a statutory remedy, the latter is a common law remedy. In

an action involving infringement or passing off, a court may grant relief of injunction and/or monetary compensation for damages for loss of business and/or confiscation/destruction of infringing labels and tags etc.  Although registration of trademark is prima facie an evidence of validity of a trademark, yet the registration can not upstage a prior consistent user of trademark, for the rule is ‘priority in adoption prevails over priority in registration`.

WHAT ARE THE FORMALITIES FOR WHAT ARE THE FORMALITIES FOR MAJOR TRADEMARK TRANSACTIONSMAJOR TRADEMARK TRANSACTIONS

• 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.

• To file a Notice of Opposition to oppose an application published in the Trade Marks Journal (FormTM-5).

• For Renewal of a Regd. trademark (Form TM-12 ).• Surcharge for belated renewal (Form -10)• Restoration of removed mark (Form TM-13)• Application for rectification of a registered trade mark (Form TM-26)• Legal Certificate (Form TM-46)  (Providing details of entries in the Register)• Official search request (Form TM-54).• Preliminary advise of the Registrar as to the registrability of a mark (Form TM-

55).Copyright search request and issuance of certificate (Form TM-60)

WHAT ARE THE SOURCES OF WHAT ARE THE SOURCES OF TRADEMARK LEGISLATIONTRADEMARK LEGISLATION

(1) The national statute i.e., the Trade Marks Act,1999 and rules made there under .

(2) International multilateral convention.(3) National bilateral treaty.(4) Regional treaty.(5) Decision of the courts.(6) Office practice and rulings(7) Decision of Intellectual Property Appellate Board.(8) Text books written by academician and professional experts.

Trademark Registration for Trademark Registration for Foreign InvestorsForeign Investors

AS A FOREIGN CORPORATION CAN I FILE A SINGLE APPLICATION FOR USE OF MY MARK ON MORE THAN ONE GOOD OR IN ASSOCIATION WITH MORE THAN ONE SERVICE IN INDIA

• Yes. India recognizes the system of multi-class applications and follows the International Classification. There are 42 classes in which the goods and services have been divided in India and you can file for multi-class applications both for goods and services.s

• BEING A FOREIGN CORPORATION, MUST I SELL MY PRODUCTS OR SERVICES IN INDIA BEFORE SEEKING TRADEMARK REGISTRATION

• No, Indian trademark law allows filing of a trademark application in India on an ‘intent-to-use’ basis. However the registered proprietor of the trademark in India has to commence use of the mark within 5 years and 3 months of the date of registration. Otherwise the registered trademark is open to invalidation proceedings. 

Other FAQs• WHO CAN USE SYMBOL ® IN INDIA• Only the proprietor of a trademark whose trademark has been registered in India can use

the symbol ® in India. Using the symbol ® unless your mark has been registered in India is unlawful. 

• WHEN CAN THE SYMBOL ™ BE USED IN INDIA• Using this symbol with your trademark simply implies that you claim to be the proprietor

of the trademark. There is no prohibition on the use of the symbol ™ in India.

• WHAT IS THE PENALTY PRESCRIBED UNDER CRIMINAL LAWS FOR INFRINGEMENT OF A TRADEMARK IN INDIA

• The penalty for selling or providing services using a false trademark is a minimum of six months and maximum of three years and with fine not less than Rupees fifty thousand but which may extend to Rupees two lakh. 

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