Trademark Registration - An Overview
A Trademark is a sort of Intellectual Property including design, name, sign, word, or expression which recognises a product or service of a particular company from others in the same market. The owner or proprietor of a Trademark can be a company, organisation or any individual. A Trademark may be seen on a label, a package, or on the product itself. In India, Trademark Registration allows the owner to use names, images, symbols, or words to represent a business or product provided by a company or a business to differentiate the products or services. Once the Trademark is registered in India, no other business or organisation can use it as long as it remains in use.
The Trademark Registration in India also provides the exclusive right to sue others who try to use, sell, or copy your Trademark and prevents others from using an identical Trademark to the one registered by you. Once your Trademark is registered, then the owner can use the TM symbol on it. So it is advisable to get Trademark Registration under the proper guidance of a legal expert because the registration process of a Trademark has various steps, and it also requires regular follow-up from the Government.
What is the Significance of Trademark Registration in India?
- It helps to build loyalty & trust among your customers all over India;
- It’s an asset in itself;
- It represents your distinctive identity;
- It prevents illegal usage of your brand’s identity;
- It provides legal protection for your brand' identity.
There are a total of 45 different Trademark Classes, and all the products & services are classified across these classes. Before the Trademark Registration, it is necessary to carefully choose the Trademark Classes as it will determine your Trademark validity for your business' products or services. If your business operators across various products or services that come under different Trademark Classes, you have to make sure that you apply for the Trademark under all the related classes.
Following are some vital Trademark Classes in India:
- 1. Class 9
This Trademark Class comprises Computer Software & Electronics;
- 2. Class 25
This includes clothing;
- 3. Class 35
This includes business management & advertising;
- 4. Class 41
This includes Entertainment & Education;
What are the Various Types of Trademark in India?
There are various types of Trademarks in India that can be registered. Though there are various Trademarks, the objective behind them is the same that is to enable the customers to recognise the products and services that are manufactured by particular service providers or manufacturers. Please check the types of Trademarks in India below:
- Service Mark
It is the same as a Product Mark, but this mark is used to signify a service rather than a product. The primary purpose of Service Marks is that it aids in differentiating the owners from the owners of other same services. The applications of Trademark are filed under the Trademark Class 35-33 that could be named as a Service Mark as they are providing the services.
- Product Mark
This mark is used on a product rather than a service, and it helps in identifying the product origin and aids in maintaining the company reputation. These types of Trademarks are filed under the Trademark Class 1-34 in the Trademark application because they represent products or goods.
- Shape Mark
This mark is exclusively used to safeguard the shape of the product so that the clients find it applicable with a definite manufacturer and prefer to buy the product. The product shape can be registered once it is recognised that the product has a significant shape.
- 4. Collective Mark
This mark tells the public regarding the differentiating products' features and the services used to show a collective. A group of individuals can use Collective Mark so that they are jointly safeguarding the products & the services. The mark owner can be an alliance or a public establishment, or a Section 8 Company.
- 5. Pattern Mark
These marks are for only those products that have a specifically designed pattern that comes out as the differentiating aspect of the product.
- 6. Certification Mark
It's a sign that represents the origin, quality, material, or other important details of a product that are granted by the owner. The primary objective of this mark is to bring the product’s benchmark and also assurance the product to the clients by representing that the product has gone through standard tests to check the quality. These marks are generally seen on electronic products, foods items, and toys.
- 7. Sound Mark
It's a sound that can be linked with a product or service that is creating by a certain supplier. Sound marks are also terms as audio mnemonics, and they appear to be at the starting of the commercial end.
Benefits of Trademark Registration in India
Following are some benefits of Trademark Registration in India:
- Differentiating Products
Trademark Registrations are unique to the products or goods they represent. Registration will enable the differentiation of your product against the product of your competitors in the same marketplace. Since the Trademark registration will be valid for the entire class of products or services represented, it will help uniquely identify your products. Customers recognise products carrying different Trademarks, creating a client base for your products or goods.
- Trademark Recognition
Trademark Registration is valid for 10 years in India from the filing date of the Trademark application. However, after ten years owner can renew it also. If you desire to use your Trademark outside India, then you need approval or Trademark Registration in the respective countries where you want to use the Trademark. In such instances, your Trademark Registration and business in India performs as a foundation to get registrations in other countries.
- Expand Business
With a unique Trademark, you can build a solid customer base, and your Trademark helps you in expanding your client base. Registration grants exclusive rights of use for ten years and safeguards your business profits. Business enterprises can leverage the advantages of a client base by introducing new products and expand their business.
- Brand Recognition
Customers are connecting a product's quality, features, and so on with the company making such products. They know the product generally by the logo, which would be registered Trademark. Registration of Trademark provides brand recognition for your products and services. It also generates goodwill associated with the brand. Hence, your brand is identified as well as carries a market value.
- Legal Protection
Trademark is the part of Intellectual Property, and they are protected from infringement. Trademark Registration also provides an exclusive right to use the Trademark regarding the "Class" of products or services it represents. Once you file the application, the Symbol "TM" can be used with your products, and the Symbol "R" can be used only after getting Trademark Registration Certificate. In case of any Trademark Infringement, you can sue anyone how tries to copy, sell, or distribute your registered Trademark without any proper permission from the actual owner.
Eligibility Criteria for Trademark Registration in India
In India, Trademark Registration can be obtained by businesses or individuals or by non-profit organisations. But, each of the different class of individuals or companies have different necessities for obtaining Registration of Trademark. Following is the eligibility criteria:
- Proprietorship Firms
At the time of filing a Trademark application in India for a Proprietorship Firm, the full name of the candidate should be mentioned, and the business name or Proprietorship is not acceptable.
- Overseas Company
In this case, the overseas company files an application for Trademark Registration in India. The application of Trademark is to be made in the corporate name as it is registered under a foreign country.
- An Individual
An individual who wants to start a business in the future can also file an application and obtain Trademark Registration in India for a name, word, design or a symbol that is planned to be used by the owner.
- Partnership Firms
While filing a Trademark application for the Partnership Firm, all the partners' names should be mentioned in the application form. IF the Partnership Firm consists of a minor in the partnership in the guardian's name who is showing the minor should be mentioned in the Trademark application.
In this case, the application must be in the name of the LLP. A Limited Liability Partnership is a registered body where the partners have their own identity. The partners cannot be the candidate as the Trademark belongs to the Limited Liability Partnership.
- Society or Trust
If the Trademark application is filed on behalf of the Society or Trust, then the name of the Chairman, Managing Trustee or the Secretary that is showing the trust or the Society is to be mentioned.
- Indian Company
If the Public Limited Company, One Person Company, or a Private Limited Company files a Trademark application, the application is to be made in the company's name. As they all are self-governing companies, they are applied cannot be made by the Director. However, the application form can be signed and submitted by the company's Director or any legitimate officer.
- Joint Owners
If two individuals are deciding to file an application for Trademark Registration, then the name of both individuals should be mentioned in the Trademark application.
Documents Required for Trademark Registration in India
Following are some essential documents that must be arranged during the Trademark Registration Process in India:
- Submit any identity proof of the owner (Such as Aadhar Card, Passport, Driving License, PAN Card, etc.);
- In case of Limited Liability Partnership or a Private Limited Company submit Partnership Deed or Certificate of Registration (COR);
- Submit the address proof (all the latest utility bills);
- Udyog Aadhar Registration;
- Power of Attorney signed by the applicant.
- Submit a copy of the logo (optional);
- Duly-signed Form-48.
Form 48 – This form is an authorisation from the applicant to a Trademark Attorney for filing an application for Trademark Registration on their behalf.
Procedure for Online Trademark Registration in India
Following is the online procedure for Trademark Registration in India:
Step 1: Trademark Search
This is an essential step of Trademark Registration before commencing Registration; it is necessary for any entrepreneur to search for Trademark availability. Trademark Search will provide detailed information of similar Trademark filed with Trademark Registry.
Step 2: Filing of Trademark Application
Once you complete the Trademark Search, then the Trademark application can be filed with the Registrar of Trademark. The Trademark application should be in a prescribed manner and filed along with the prescribed fees. The Trademark application can be made online or in any Registrar Offices of Trademark with jurisdiction over the state. Following are some vital information that is mentioned in the Trademark application:
- Logo or name or the Trademark;
- Detailed information of the products or services;
- Full name & address of the Trademark holder;
- Trademark used before (if any).
Step 3: Examining Trademark Application: Once the Trademark application is submitted, the Trademark Registrar will examine whether you have followed all the terms and that your Trademark or brand name complies with the existing law. Moreover, there shouldn’t be any similarity with any pending or existing brands for the Trademark registration. This is the reason it is vital to choose a unique brand name.
Step 4: Trademark Publication in the Indian Trademark Journals: After the examination process, the Trademark Registrar will publish your brand name, mark, or logo in the Indian Trademark Journal. This is surely the most crucial part of the Registration, and there shouldn’t be any opposition within three months or 120 days in some cases, from the date of publication. When there is no opposition, the Trademark Registrar will proceed towards the issuance of the Registration Certificate.
Step 5: Trademark Opposition: In case there is any Trademark Opposition by any 3rd party within three months of the publication, the Trademark Registrar will send you a copy of the Opposition Notice. You need to reply to the notice by filing a counter-statement within two months; otherwise, the application for Trademark Registration will be deemed as rejected. But, if there is no opposition within the prescribed time, then this step will not apply to you, and your Trademark is proceeding towards acceptance for the issuance of the Registration Certificate.
Step 6: Hearing on Opposition: This is applicable if there is any Trademark Opposition. Suppose your Trademark is opposed by a 3rd party, and you send your counter-statement within two months of time. In that case, the Trademark Registrar will send your counter-statement copy to the 3rd party opposing Registration of Trademark.
Evidence or proof must be submitted by you and the 3rd party in support of your case. The Trademark Registrar will give an opportunity to you and 3rd party of hearing after submission of evidence. After hearing both the parties & considering the evidence, the Registrar will pass an order of rejection/acceptance of the application. If the Trademark Registrar accepts your application, then they will process to issue a Registration Certificate.
Step 7: Issuance of Trademark Registration: If there is no opposition within the prescribed time of 90 days, then the Trademark Registrar will accept your application. And then, the Registrar will issue the Trademark Registration Certificate with the Trademark Registry Seal.
How to Check Trademark Application Status in India?
Once you file the application for Trademark Registration, you can check the Trademark status by following the steps below:
- Step 1
First, you have to visit the online website to check the status of the Trademark application, i.e., https://ipindiaonline.gov.in.
- Step 2
On the left side of the website, you will see the first option that shows “Trade Mark Application/Registered Mark”, click on this button. Once you clicked it, two options will appear on your screen (National/IRDI Number and International Registration Number); you have to click the first option, which is the National IRDI Number.
- Step 3
After this, you have to enter the Trademark application number, enter the captcha code, and click on the “View” button.
- Step 4
Once you click the View button, the Trademark application status will appear on your screen.
Important Points to Know About Trademark Registration
- Trademark Search
This is generally used to check if a particular Trademark already exists in the Trademark Journal. The Trademark Search can be conducted through the database of the Indian Trademark Registry or a third-party website.
- Visual Representation
Following are the types of Trademarks that you can get registered:
• 3-D Marks;
• Word Marks;
• Series Marks;
• Geographical Indicators;
• Service Marks;
• Collective Marks;
• Certification Marks;
• Colour Marks;
• Sound Marks;
• Logos and Symbols;
• The Shape of Goods.
- Selection of Class
The products or services are categorised into 45 different Trademark Classes. Every brand name is to be registered under the suitable class during Trademark Registration. Out of 45 Trademark Classes, 34 are Product Classes, and the other 11 are Service Classes.
The validity of a registered Trademark is only ten years, and it can be renewed further. However, the process of Trademark renewal may be started only within one year before the expiration of the registered Trademark. If the owner fails to renew the Trademark within the time, then the Trademark will be removed. Even on removal, the Trademark can be restored, which is known as Trademark Restoration in the prescribed form.
- Intangible Asset
Trademark is an essential part of Intellectual Property, and being a part of IP, it heaps of benefits to the company or business. Once the Trademark is registered, it automatically becomes an intangible asset that can be distributed, traded, commercially contracts, and franchised.
The registration is done on a voluntary basis, but, is a Trademark is registered, it holds robust proof that the Trademark ownership belongs to the individual who has taken the effort to register it. All legal decisions will be in support of the party that had the Trademark registered.
- Protection Against Trademark Infringement
The Trademark owner can exercise their lawful rights if there is any Trademark Infringement concerning the logo, name, word, or slogan of the owner that has an active Trademark against it. The registered Trademark holder has the exclusive right to sue any unauthorised party or third party that uses, copies or distributes the Trademark without any permission of the actual owner.
- Trademark Symbols: 1. TM or Trade Mark and SM or Service Mark
TM and SM mean the Trademark has not been registered yet, but the application is pending.2. R Symbol
This Symbol represents a newly registered Trademark that is empowered to show the R symbol next to the Trademark.3. C Symbol
This symbol is used to define the Copyright that the owner has over some creative work, and this Symbol is valid for a lifetime.
Frequently Asked Questions
The term “Trademark” denotes a symbolic or visual representation that aims to protect a logo; signature; word; colour; name; label; device; etc. used by an individual on his/her goods and services.
The functions of a trademark include identifying the origin of goods and services; guarantee for the quality; advertisement of goods and services; and creation of the brand image.
The different types of Trademark Symbols are TM, SM, and R.
The registered owner of a goods and services gets to benefit from a Trademark.
The main advantage of a trademark is that it helps the owner preserve the uniqueness and individuality of the goods and services.
The Trademarks Act, 1999, acts as the basis for the Trademark Laws in India, along with the rulings issued by the IPAB (Intellectual Property Appellate Board).
Yes, an applicant is allowed to make changes in the application for Trademark Registration. However, he/she is not allowed to make a substantial alteration in the identity of the goods or services.
Yes, it is possible to remove a registered trademark from the register by filling an application to the registrar in the specified format. One also need to mention the reason for striking off the name.
Yes, a Registrar can strike-off a name on suo motu basis.
The steps included in the process of checking a name are, visit the official website; select “Related Links”; click on “Trademark Status”; choose the “Trademark Application”; lastly, click to start Trademark Public Search.
The different types of Trademarks are Suggestive Marks; Fanciful or Arbitrary Marks; Generic Marks; and Descriptive Marks.
Class 35 includes services relating to Advertising and Managing a Commercial or Industrial enterprise.
No, it is illegal to imitate a registered logo, and the same will result in the case of Trademark Infringement.
A trademark remains valid for a period of 10 years and is eligible to obtain renewal after expiry.
Yes, a logo is covered under the ambit of Trademark Registration.
Any trademark registered as per the provisions of the Trademarks Act 1999, is considered a valid Trademark in India.
Yes, an individual can trademark a phrase. However, he/she needs to keep in mind that it does not contain any word that is representing the quality of the goods or services.
An individual can get his/her trademark renewed in every 10 years.
No, the owner needs to get the trademark renewed in every 10 years.
Yes, an applicant can amend the registered trademark, if the amendment does not lead to substantial alteration in the nature of goods and services.
Yes, an applicant can get a sound or smell registered under the Trademark Act.
The Indian Trademark Registration may not be completely valid in a Foreign Country. However, the same can serve the purpose of filing a Trademark in the desired foreign country.
Yes, a registered company can apply for Trademark Registration in India.
Yes, an applicant is eligible to transfer a Trademark to any other person. However, the processing fee for the transfer varies as per the status of Trademark.
Normally, the registration fee for the small enterprises is Rs 4500/- and Rs 9000 for big ventures.