Trademark
Why is it necessary to get a trademark done?
25 May 2016  |  Views: 768  | 
Rashi Gahlaut
Advocate

A Trademark generally refers to a “brand” or “logo”.

Trademark registration can also be obtained for a business name, distinctive catch phrases, taglines or captions.

Properly used and promoted, a Trademark may become the most valuable asset of a business. Trademarks such as Coca Cola, HP, Canon, Nike and Adidas serve as an indication of origin of the goods as well as an indication of quality. 

It is also essential to obtain trademark registration for the business name/trade name under the Trademarks Act. Registration of a company or business name under the Companies Act does not in itself give protection against others who might commence using identical or similar marks.

A trademark can be a word, symbol, logo, brand name, wrapper, packaging labels, tagline or a combination of these and are used by manufacturers or merchants or service providers to identify their own goods and/or services. It is used to distinguish the owners’ goods or services from those of its competitors and is something that will be distinctive of just one trader. Trademarks should not be confused with trade names. While trade names can also serve as trademarks, registration of a company or business name under the Companies Act does not in itself give protection against others who might commence using identical or similar marks.

Difference between a registered and an unregistered trademark?

A registered trademark has been approved and entered on the Trademark Register held by the Trademarks Office. Registration is proof of ownership. An unregistered trademark may also be recognized through Common Law as the property of the owner, depending on the circumstances.

Advantages of obtaining trademark registration?

  • Prima-facie evidence of ownership of the trademark.
  • Important asset for your business or company and contributes to the goodwill generated.
  • Gives you stronger enforceable rights to prevent others from using the trademark in connection with the goods or services for which it is registered.
  • Trademarks can be sold, licensed or assigned.
  • Registration usually covers the whole of India.
  • Protects the innocent public from buying goods of second rate quality.

TRADEMARK REGISTRATION PROCESS

  • Upon filing of the application, the registry will issue us with an official receipt with the filing date and number allotted to the application. 
  • The application is then formally examined by the Indian Trade Marks Office, as to its inherent registerbility and/or any similarity with existing marks. If an objection to registration is raised, an official examination report will issue. To overcome the objection, it is necessary to file a written response or presenting evidence of acquired distinctiveness and in most cases, an interview/hearing with the examiner is posted. The Registrar may require the applicant to file an affidavit testifying to such user with exhibits showing the mark as used.
  •  If, following examination, the trade mark application is considered allowable, a Letter of Acceptance (TLA order) will issue, after which the trademark will be published in the Trade Marks Journal. If there are no oppositions within 4 months from the date of advertisement in the Trade Marks Journal, then the trademark registration certificate will issue.
  • Trademark Registration is a tedious process and it takes around 18-24 months to obtain registration in a straight-forward case, without any objections or oppositions. However, once the trademark application is filed, an application number is allotted immediately and the priority starts from the date of application.
  • Once the trademark is registered, it is valid for a period of 10 years from the date of application. The registration can then be renewed indefinitely as long as the renewal fees are paid every 10 years.
  •  In India, you could get a ™ within three days, but it takes up to two years for it to be registered so that you can use the ® symbol.
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