A trademark typically protects brand names and logos used on goods and services. Trademark is the symbol, word, or word legally registered or established by use as representing a company or product. Trademark created to prevent unfair competition by protecting the use of symbols, words or phrases in an inappropriate way.
Trademarks are words, phrases, or symbols, which represent a company or product. They distinguish the products or services of one company or organization from those its competitors may provide. Some other examples of trademarks include acronyms (like NBC, IBM) and extend to slogans, stylized fonts, and even colours. Trademark can be in the form of Wordmark, Vienna code and Phonetic
Major Difference between Registered and Unregistered trademark.
Symbol ® for Registered Trademark.
Symbol ™ for Unregistered Trademark.
|Sr No||Registered Trademark||Unregistered Trademark|
|1||Registered Trademark get the right to use such Mark is exclusively Conferred upon the owner of such registered trademark in india||Unregistered Trademark does not have safeguards against infringement|
|2||Registered Trademark Owner gets the Legal Protection if infringement takes place.||Unregistered Trademark does not get protection and it cannot be stop by Using from third party|
|3||It is Important to Register Trademark as it helps in Identifying and Advertising the product||Unregistered Trademark get posses with Common law rights|
|4||The Time Period for Registration of Trademarks is 10 year it must get renewed after the expiration of 10 years.||No such thing in case of Unregistered Trademark|
Trademarks are word, phrase, or symbol, which represent a company or product. They distinguish the products or services of one company or organization from those its competitors may provide.
From 28th July 2016 in Ministry of Commerce and Industries has announced that it had become fully automated
From 1st August 2016 Certificate of Trademark will be generated online.
In Un-registered trademark, no action for infringement is allowed under section 27 of Trademark Act 1999. Common law remedy can be availed by the unregistered trademark.
If their goods and services have high importance and goodwill in the market then they can get the remedy of passing off.
Documents required for filing a Trade Mark Application in India:
- Trademark or logo copy
- Applicant details like name, address and nationality and for a company: the state of incorporation
- Goods or services to register
- Date of first use of the trademark in India, if used by you prior to applying.
- Power of attorney to be signed by the applicant
Trade cost Depends on trademark classes filling whether it is collective Mark or not etc.. it varies as per that
One Can Follow the Link for Further information.
Trademark Shall Not Be:-
- Similar or identical existing registered trademark.
- devoid of distinctive character.
- descriptive in nature.
- made with bad faith.
- Customary in the current language or in the established practices of business.
- Likely to deceive the public or cause confusion.
- Contrary to the law or is prevented by law.
- Prohibited under the Emblem and Names Act, 1950
- Contains matters that are likely to hurt the religious feelings of any class or section of people.
Steps Required For Registration Of Trademark:-
Step 1:- Trademark Research
It helps one to know where does trademark stands or either similar trademarks are available. The chosen brand name or logo is not listed in the Trademark Registry India. If trademark matches with any other existing trademark it may get into trouble and may become a part of litigation.
Step 2:- Filing of trademark Application
Trademark application office is there in Chennai, Delhi Mumbai, Kolkata and online too. After application, an official receipt generated. As every procedure is becoming online one can track the Status of Trademark as an when required.
In India, there are 45 classes of goods and services under trademark law
Step 3:- Trademark Examination
After Application trademark examination process goes on which take around 12-18 Months if get complete it will get published in a journal. If there is some objection in the publication of Trademarks then they will be given a reasonable opportunity of being heard and will be rectified within a month.
Step 4:- Trademark Publication.
After publication within 2-3 Months, there is no opposition then it became eligible to get register under the trademark registration process.
Step 5:- Registration Certificate
After getting published trademark Certificate got issued to the owner which is sealed by officials.
Types of Trademark
1) Generic Mark:-
Generic mark refers to a symbol or word that references a type of product as opposed to a specific product brand
Attempting to use the term CAR for an “automobile” would be generic.
For Example Xerox.
A mark should be descriptive to get registered as a trademark and it should distinctive.
UPS, for example, has successfully registered its brown colour as a trademark because of the distinctiveness it has acquired.
For Example Head & Shoulder for Shampoo
3) Suggestive Marks
Suggestive marks differ from descriptive marks in that they do not actually describe the product but suggest an attribute that requires some thought on the part of the consumer.
For Example Microsoft
4) Arbitrary or Fanciful Marks:
Example of Arbitrary or Fanciful Marks such as APPLE as it relates to computer products is an arbitrary mark, and therefore very strong because apples have nothing to do with computers.
For Example, Fanciful mark example is BATA & Arbitrary mark example is APPLE
Other Types of Trademarks are:
1) Word Marks:
A word mark gives the proprietor a right only in the word, letter or numerical.
2) Device Trademarks:
It gives Unique Representation of a word, Letter or Numerical7
3) Service Trademark:
Service doesn’t represent goods but the services offered by a person/Company
4) Collectively Marks:
Marks being used by a group of companies can now be protected by the group collectively. Collective Marks mainly used by the enterprises or a group of enterprises.
5) Certification Marks:
The major difference between Collective Marks & Certification Marks,
A collective mark is for enterprises where has Certification Marks is taken by Individual or person, Toys, Electrical goods, etc. have such marking that indicates the safety and the quality of the product.
6) Well-known marks:
In order to be well-known, a trademark needs to be known/recognized by a relevant section of people.
7) Unconventional Trademarks:
a) Colour Trademark: Colour which differs from others such as Red wine.
b) Sound Marks: Musical Notes
c) Shape Marks: Ornamental Lamps.
d) Smell Marks: Perfumes.
Table of Statutory Fees Payable while Registration of Trademark
|Sr No||What Payable||Statutory Fee for E-filing||Statutory Fee for Startup/Individual/SME|
|2||Expediting registration [Optional]||40000||20000|
|3||Amendment to the application [for example change of address]||900||900|
|4||Notice of opposition||2700||2700|
|5||Response to a notice of opposition||2700||2700|
|6||Request for extension time||900||900|
|8||Renewal within six months after the expiration of the last registration of the trademark||4500||4500|
|9||Restoring a trademark that has been removed from the register||9000||9000|
Trademark Application Status:
One Can Track as an when required by step by step process
This Application entered into Database Entry.
Send to Vienne a Codification:-
It is applicable only to the non-text Trademarks.
Formality Check pass:-
Have complied with all procedural Formalities. It shows fail if it is incomplete.
Send Back to EDP:-
This Means Electronic Data Processing. They send back to EDP for the digital process if they consider that there was some error in data entry.
Send to PRAS:-
Pre-registration amendment section reflects when one file an amendment.
Marked for Examination:-
In this application will be taken up by an Examiner in order to determine its registrability
Exam Report Issued:-
after Examination, the exam report is issued
Here examiner rises Objection if there is any incomplete information given.
With no Response application for the trademark will be abandoned.
Advertised Before Accepted:-
Trademark will be published to see whether there is any opposition from any.
Accepted and Advertised:-
Trademark advertised in Trademark journal if any disobedience then will be shown in Ready for show hearing, Refused and opposed under Section 9(1)(a) or Section9(1)(b) and 11 of Trademark Act, 1999
However, as Section 21 of the trademark act 1999, any person can apply for trademark opposition.
After Completion of every process, one can download trademark certificate www.ipcindia.nic.in
However, Trademark can be removed because of non-removal from time to time and even voluntarily withdraw as and when required.
What is Notice of Opposition?
Within the 4-month period after the publication/advertisement of the mark in the Trademarks Journal, any person can oppose the mark by filing a Notice of Opposition on the prescribed Form TM-O along with the prescribed fee of INR 2700.
Notice of Opposition Primarily comprises of following:
- Application Number
- indication of the goods or services listed in the trademark application against which opposition is sought.
- Name of Applicant of Trademark
- The opposition is entered by the proprietor of the earlier trademark, his name and address along with details of his trademark/rights.
- If the earlier trademark is a well-known mark, a description to that effect along with the details of the country or countries in which the earlier trademark is recognized to be well known along with details of the earlier mark.
- The counter-statement shall be verified at the foot by the opponent
- The verification shall be signed by the person
Trademark helps in building Trust and Goodwill, It differentiates original products with the duplicate one. By Trademarking the product it creates Exclusive rights and it gives recognition to the quality of Product, It protects Against the Infringement. It is Cost Efficient.
Once the Trademark is Registered it is recorded for a certain territory or Country, and for Certain Goods & Services and for Certain Period of time, subject to Trademark Law force in the country
Registered Trademarks have their benefits and exclusive rights which include identifying the origin of goods and service, it protects the innocent public from buying the second rate goods and it guards the commercial goodwill of a trader.
Student, Vivekanand Education Society of Law Chembur Mumbai.
Sushma Gowda is a 1st year law student of Vivekananda education society of Law Chembur. She is an enthusiastic person to learn core area of various laws. She possesses research and drafting skills in different field of law. For any clarifications, suggestions and feedback kindly find her at firstname.lastname@example.org