In any business, the most important and essential achievement for any entity is to stand out and create an identity that differentiates the business from other market players. In carving this important space trademark plays a very prominent role for the entity in the market. Trademark is that branch of intellectual property that helps the entity to create an independent identity, consequently differentiating it from other similar entities.
Now, what is this trademark? Under the Indian laws, a trademark has been defined to be a mark having inter alia, the following features:
– capable of being represented graphically;
– capable of distinguishing the goods or services of one person from those of others; and
– may include the shape of goods, their packaging, a combination of colors, etc.
To give it a broad meaning, a mark has also been defined in the Indian statute. As per the definition, a mark includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging, or combination of colors or any combination thereof. Therefore, in essence, a trademark can be anything that can act as a source identifier, capable of distinguishing between the goods or services of one person from the other.
Registration of Trademark
For registration of a mark as a trademark, it inter alia must satisfy the following:
(i) the mark should be capable of being represented graphically;
(ii) the mark should be able to distinguish between goods or services of one person from another;
(iii) the mark must be used or proposed to be used in the future;
(iv) the mark should not be similar or identical to the already registered trademarks;
(v) the mark should not be falling under the restricted categories provided in the statute.
However, there is the possibility of absolute or relative grounds of refusal raised by the Registrar objecting to the registration of a trademark. The absolute grounds of refusal include lack of distinctive character, i.e. not capable of distinguishing between the goods and services of one from another; the mark may 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 services; or that the mark has become customary in the current language or in the bonafide and established practices of the trade. Relative grounds of refusal include that the mark is identical or similar to the previously registered mark and there is identity or similarity between the goods. Therefore, it is always advisable to go for a trademark search to make sure that your trademark is not falling under any of the grounds of refusal. Upon determining that your mark is registrable, you may proceed with filing your trademark application.
It is also advisable to get the trademark registered as soon as one intends to use it in the course of the trade. However, even if the trademark has been used, one can file an application with the date on which the trademark was first used. The same has to be also accompanied by a user affidavit showing use before application.
Process of Registration
The following flowchart depicts the registration of trademark process in India.
IMPORTANCE OF REGISTRATION
Though it is not mandatory for registration of the brand as a trademark, the registration of the brand as a trademark is essential in today’s era. With the increase in goodwill and reputation of the goods or services, if the trademark is registered, the value of the trademark increases and thus it becomes an important and sometimes even the most valuable asset of the business. Depending on the value of this asset, a competitive advantage in licensing and business deals is also achieved. Moreover, registration of a trademark has strong evidentiary value for proving ownership of the mark in the court of law in case someone tries to infringe the trademark and helps in securing a preliminary injunction against such miscreants easily. Therefore, it is always advisable to secure your trademark at the outset by registering the same. Also, unlike other IPs, a trademark can be secured for an infinite time by renewing it periodically.
To get your business secured and know more about trademarks, you may go through the FAQs on trademarks from here, in case of patents from here, and other IP from here. Alternatively, you can talk to us so that we can suggest you the best way forward. Click here or fill out our contact form to schedule a consultation with our team.
LIST OF SERVICES
– Trademark clearance search
– Trademark filing
– Trademark prosecution
– Trademark hearing
– Trademark opposition matters
– Trademark rectification proceedings
– Trademark litigation support