Trademark

Introduction

Trademarks are distinctive symbols used to identify a company’s goods or services. They can include
designs, images, logos, or phrases. These marks are crucial as they set your products apart from those of
competitors. Trademarks are classified as intellectual property and are protected by the Trademark Act, 1992. Trademark registration expires after 10 years of registration and can be renewed again for another 10 years.

How to register a trademark

Trademark can be registered online through following steps:

● Step I: Preparing a trademark application

The application for online trademark registration must be accompanied by the following supporting documents:
(i) Business Registration Proof
(ii) Soft copy of the trademark.
(iii) Power of attorney signed by the applicant.

● Step II: Filing the application of brand name registration

There are two methods for submitting a trademark registration application (form TM-A): Manual
Filing and e-filing. For manual filing, you must personally deliver your registration application to
the Registrar Office of Trade Marks in major Indian cities such as Delhi, Mumbai, Kolkata,
Ahmedabad, and Chennai.

With the e-filing system, you will immediately receive an acknowledgment receipt on the
government website. Once you have this receipt, you are permitted to use the TradeMark (TM)
symbol next to your brand name.

● Step III: Examining the process of the brand name application

The registrar will review the brand name application to ensure it complies with current laws and
verifies that it is not identical or similar to an existing trademark.

● Step IV: Publication of the brand name in the Indian Trade Mark Journals

Following the examination, the Registrar of Trademarks will publish the brand name in the Indian
trademark journal. If no opposition is raised within four months of publication, the Registrar will
proceed with issuing the Trademark Registration Certificate.

● Step V: Trademark Opposition

If a third party opposes the trademark within four months of its publication in the trademarks
journal, the Registrar of Trademarks will provide you with a copy of the opposition notice. You
must respond by submitting a counter-statement within two months of receiving this notice.

● Step VI: Hearing on Trademark Opposition

After the submission of evidence, the Registrar will offer both you and the third party an
opportunity for a hearing. Following the hearings and a review of the evidence, the Registrar will
decide to either accept or reject the trademark application. If the Registrar accepts your application,
the registration process will proceed.

Expense of Trademark Registration

The filing of trademark application has two separate cost brackets:

● Rupees 9,000 or Rupees 10,000
If you are not a startup, small enterprise, or individual, you fall into this category. The fee for
e-filing the form is 9,000 rupees while filing the form in person at the Office of Trade Marks costs
10,000 rupees.

● Rupees 4,500 or Rupees 5,000
If you are an individual, small enterprise, or startup, you fall into this category. The fee for e-filing
the form is 4,500 rupees, and the fee for filing the form in person is 5,000 rupees.

How is a brand name protected through a trademark?

Trademarking your company’s name safeguards the brand, its reputation, and your concepts. A brand
name can be protected in following aspects:

● Letter
● Word
● Number
● Phrase
● Graphics
● Logo
● Sound Mark
● Smell or a mix of colors

Trademark Infringement

Trademark infringement is a concept denoting the unauthorized utilization of a trademark. It happens
when an individual uses a trademark without the owner’s consent, potentially causing confusion among
customers regarding the origin, sponsorship, or association of products or services.
Both civil and criminal cases can be filed in the case of trademark infringement.
In the case of a civil case, the following remedies can be provided by the court:

● Temporary injunction
● Permanent injunction
● Damages
● Account of profits (damages in the amount of the profits gained from the infringement)
● Destruction of goods using the infringing mark
● Cost of legal proceedings

In the case of a criminal case, the following remedies can be provided by the court:

● Imprisonment for a period not less than six months that may extend to three years
● A fine that is not less than Rs 50,000 that may extend to Rs 2 lakh.

FAQs

What does have trademark mean?

A trademark is a legally protected symbol, word, phrase, design, or combination thereof that identifies and distinguishes the source of goods or services of one party from those of others. Having a trademark means:

1. Exclusive rights to use the mark in commerce
2. Legal protection against unauthorized use by others
3. The ability to sue for infringement
4. A way to build brand recognition and value
5. Use of the ® symbol for registered marks

What is a trademark in IPR?

In Intellectual Property Rights (IPR), a trademark is a distinctive sign or indicator used to identify and distinguish goods or services of one enterprise from those of others. It’s a form of industrial property protection that:

1. Plays a crucial role in branding and marketing strategies
2. Grants exclusive rights to the owner
3. Prevents unauthorized use by competitors
4. Protects consumers from confusion
5. Can include words, logos, symbols, sounds, or colors
6. Is typically registered with a national or regional trademark office
7. Lasts indefinitely if renewed periodically
8. Represents a valuable business asset

Who owns the trademark?

The trademark owner is typically:

1. The individual, company, or legal entity that registered the trademark
2. The original creator or first user of the mark in commerce
3. A business that acquired the trademark through purchase or merger

Ownership grants exclusive rights to use, license, or sell the trademark. Multiple parties can own a trademark jointly. In some cases, holding companies are created specifically to own and manage trademarks. Trademark ownership can be transferred through assignment, but the owner must maintain quality control over goods or services associated with the mark to preserve rights.

What is trademark and its types?

A trademark is a distinctive sign that identifies goods or services from a specific source. Types include:

1. Word marks: Names, slogans, or phrases
2. Design marks: Logos, symbols, or images
3. Combined marks: Words and designs together
4. Color marks: Specific colors associated with a brand
5. Sound marks: Distinctive audio signatures
6. Shape marks: Three-dimensional product shapes
7. Pattern marks: Repeating designs
8. Motion marks: Moving images or animations
9. Hologram marks: Three-dimensional holographic images
10. Smell marks: Unique scents (rare)

These can be registered or unregistered, with registered marks offering stronger legal protection.

Who can file a trademark?

Anyone who uses or intends to use a mark in commerce can file a trademark:

1. Individuals
2. Companies or corporations
3. Partnerships
4. Limited liability companies (LLCs)
5. Associations
6. Joint ventures
7. Trusts
8. Estates
9. Government agencies
10. Non-profit organizations

The applicant must be the owner of the mark or have legal authority to act on the owner’s behalf. They should have a bona fide intention to use the mark in commerce. Foreign entities can also file trademarks in many countries, often through local attorneys. Some jurisdictions require legal representation for trademark filing.