Trademark Registration in India – An Overview
The law for trademark in India was addressed for the first time during 19th century which eventually led to the enactment of the Trademarks Act, 1940. After subsequent years the Trademark Act, 1940 was repelled by the Trademark Act, 1958. This act was constituted by consolidating the provisions of trademarks in Criminal Procedure Code, Indian Penal Code as well the Sea Customs. However, the Trademark Act, 1958 was further repelled by the Trademark Act, 1999 which at present regulates the trademark law and practice in India.
Meaning Of Trademark in India
Trademark has been defined under section 2(zb) of the Trademark Act, 1999.As per this section, "trademark" means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours”.
In simple language if described trademarks are special signs that identifies certain goods and services which are provided by or produced by an individual or a company. It is a brand or logo or a visual sign which represents the business. Trademarks are used to distinguish the products of owner and service those from their competitors.
Unlike Patents, Trademarks does not have any particular time period of limitation. Thus, in a situation where any patent expires after a period of 20 years, a trademark would expire within the period of 10 years after registration. The trademark can be renewed again after the period of 10 years. It is an ongoing process which means that the trademarks renewal process can be done for an indefinite period.
Essential Ingredients of Trademark
The two essential ingredients of trademark registration are:-
Eligible to be represented graphically
The mark which is to be registered as a brand logo or a symbol must be capable of being represented graphically so that it can be put on register in a physical for and can be published in Journal.
Trademark Must be unique
The trademark must be unique and distinctive in nature. This would help in distinguishing one brand name from another.
Benefits of Trademark Registration
Some of the benefits of Trademark Registration in India are as follows:
In India, Trademark Registration are different for every goods or services they represent. A Trademark will enable exclusive identification of the product in comparison to the products of the other competitors in the market. Since Trademark Registration is valid for the entire class of goods or services, it will also help in identifying the products easily thus maintaining the reputation of the owner in the market.
In order to create the customer base for any goods or services or products the applicant should always look for a unique logo or symbol which will help the applicant to carry different Trademarks.
What is Trademark Recognition?
A registered Trademark in India is considered to be valid for a time period of 10 years from the date of filing of an application for Trademark Registry. However, a trademark can also be considered for further Trademark Renewal by the applicant.
Goodwill among customers
The performance, quality, feature of any product manufactured or made by any company is recognised by the customers. The customers identify the products generally by the logo, which would be registered as a Trademark. Trademark Registration facilitates brand recognition for the goods and services. It also creates the goodwill associated with a brand. It also shows that the business also considers and cares about building brand thus passing on positive values to the public.
Once a trademark is registered in India an infringement foe the same registered trademark can be sued by the applicant. In India, certain exclusive rights are conferred in relation to the class of goods and services it represents under Trademark registration in India. Once the trademark application has been filed by the applicant the Symbol "TM" can be used to represent products.
A registered Trademark establishes a connection between the customers and products of an enterprise. With unique or efficient products, the applicant can create a customer base. A Trademark helps in retaining and expanding the customer base. Registration of the Trademark confers an exclusive right of use for a time period of 10 years and also protects the business revenues.
Who can apply for Trademark?
- Any such person whose name is mentioned and filled as an applicant in the Trademark registration form is to be considered as an owner of the trademark once successfully registered.
- In this process, Trademark can be filed online by any individual or a company or even by any LLP. Any of these parties can be the applicant to file for the registry of Trademark.
Documents required for Trademark Registration in India
The following set of documents are required for Trademark registration in India:
- Name of the Applicant,
- Type of Business,
- Objective of Business,
- The Brand name to be registered;
- The proof of Registration address;
- The Identity and Business Proofs of the applicant. It can be the Aadhar card, driving license, passport, ration card or voter’s Id;
- The use of Logo with a Tagline;
- The Form 48.
- The proof of the claim (which is applicable) of the proposed Trademark that it can also be used in any other country.
- Power of Attorney signed by the applicant.
Process for Trademark Registration in IndiaThe procedure for Trademark registration can be done in two ways:
Offline Trademark Registration
The Trademark Registration is done by the Registry of the Trademarks in India. When a person plans on registering a Trademark there are a few steps that are involved which are as follows:
Choosing a Trademark
The applicant should remember to choose a unique and distinctive mark as it will represent the company of the owner. The other important point is to choose the corerct Trademark class.
Once the owner has chosen the respective mark it is advisable to conduct a Trademark search to check whether the mark chosen by the applicant mark is similar to an already registered Trademark or not. The legal advisors will not only help the applicant while doing all the search required for the Trademark but will also help the applicant regarding the complete process of Trademark Registration.
Filing of Application
For a trademark to be registered in India there are two option available to an applicant while filing for registration. The options are as follows:
Application for Trademark under "one" class
- In this scenario, the Trademark will be registered only for a specific class that has been sent by the applicant. In such a case, the applicant is required to fill in the form TM-1.
Application for Trademark under “Multiple” Class
- The second option available for filing application for Trademark Registration is to file for multiple classes or series Trademark, or collective Trademark. For this, the applicant is required to fill in form TM-A.
Online Trademark Registration
Trademark Name Search
In order to get a trendy, catchy or an interesting brand name for any services or goods or products for any new applicant this is considered to be one of the simplest way to do so. Picking up a name for a brand that is quirky and wacky is definitely a very wise move since most of the common names would have already been someone else’s hands.
Preparing a Trademark Application
The applicant is then required to prepare the Online Trademark application by submitting all the required documents as prescribed by the authorities.
Filing the Trademark Application
The applicant is required to choose the submit application option on the website after submitting all the required documents. In the case of an e-filing system, the applicant will receive his/her receipt of acknowledgment instantly on the government website. After receiving the acknowledgment, the applicant is eligible to use the Trademark (TM) symbol beside his/her brand name.
Examination of Application
After submitting the application for Trademark registration, the registrar will go through all the documents submitted by the applicant. The registrar will look whether the applicant has followed all the terms and conditions that the brand name complies with the existing laws. However, there should not be any kind of conflict amongst any existing or pending brands names for the registration.
Publication in Trademark Journal
Once the process of examination is completed, the registrar will publish the brand name in the Indian Trademark Journal. This is considered to be the most crucial part of the process of Trademark Registration in India.
Issuance of Trademark Registration Certificate
The Registrar of Trademarks will accept the trademark application. If there is no opposition being raised by any person or company within the time period of 90 days then the trademark application is considered to be accepted. The Registrar will then further issue the Registration Certificate with the Indian Trademark Registry seal on it to the applicant.
Once the applicant has been issued with the Registration Certificate; he/she can use the symbol of registered trademark (®) beside the registered brand name.
Grounds for Refusal of Trademark Registration
Section 9 of the Trademark Act, 1999 mentions grounds on which a Trademark Registration can be refused. The Act explains that following are the marks which can be refused:-
- Marks which lacks any sort of distinctive character
- Marks which may deceive the public thus causing confusion
- Marks which are likely to hurt the religious sentiments of any class, creed or an individual
- Marks which comprises of any obscene material
- Marks which are prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950
- Marks which consists of the shape of goodsor a three dimensional mark for better technical results
- Marks which are identical to the marks of a well known brand
Thus, these are some of the provisions laid down which could lead to the dismissal or refusal of any Trademark which is yet to be registered.
What is the Fee Structure for Trademark Registration?
- In order to file a new application there are multiple set of forms each depending on the nature of the application. These forms are numbered as TM-1, TM-2, TM-3,TM-8 and so on. The cost incurred for these form is Rs 2,000.
- In order to file a notice of opposition for an application published in the Trademarks Journal a Form TM-5 is required. The cost incurred for filing is Rs 2,500.
- Trade Mark registration renewal an applicant must fill Form TM-12. The cost incurred for this is Rs 5,000.
- In order to file for restoration of removed mark an applicant is required to fill Form TM-13.
- In order to file an application for the rectification of any registered Trademark an applicant must fill Form TM-26.The cost incurred for such form is Rs 3000.
- After the registration of trademark, the applicants are authorised for the use of ® in order to signify that the trademark is a registered trademark and thus has the right to be protected against the infringement under the Trademark Act, 1999.
- Any unregistered trademark is denoted by the symbol ™. This particular symbol indicates the existence of trademark application in respect to the trademark to be registered.
- A service mark symbol often denoted by the SM symbol is another form of symbol used for the denotation of a trademark. This symbol is basically used by the service industry for such applications filed under class 34 and class 35.
E-Filing of Application
The Indian Trademark registry office on its website has declared a newest and most hassle free form of filing an application for registration of Trade Mark. This is the E-Filing application of brand name. Through this, the applicant can:
- Easily complete electronic application form,
- Can provide the required documents and attach it, and
- Can complete all the necessary payment details.
Benefits of E- Filing
Applicant will immediately:
- Get a Trademark application number.
- Online verification can be done for an error filing of form and obtain the filing date of application.
- Quick Online registration process.
- Applicant will be able to print the completed application data and can also receive invoice of fee paid.
- Applicant can save all the data on their own personal computer.
- Applicant can easily view their online history along with the status of application filed just by clicking on “Status of Filed Application” and also the status of payment made online.
Why Swarit Advisors?
- Thorough search of Trademark directory is conducted by us.
- We help in the preparation of the authorization letter for the filing of registration of trademark on applicant’s behalf.
- We advise you regarding the different classes of trademark and where to apply any particular trademark.
- We provide help for the filing up of forms with the Registrar.
- We are in continuous contact with the applicant along with the updates till the time trademark is not registered completely.
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.