Trademark means : – A trademark, is a recognizable sign, design, or expression which identifies products or services of a particular source from those of others, although trademarks used to identify services are usually called service marks. A trademark may be located on a package, a label, a voucher, or on the product itself. For the sake of corporate identity, trademarks are often displayed on company building. The Trademark owner can be an individual, business organisation, or legal entity.
History Of Trademark – Law : – Indian trademark law statutorily protects trademarks as per the Trademarks Act, 1999 and also under the common law remedy of passing off. Statutory protection of trademark is administered by the Controller General Of Patents, Designs and trademarks, a government agency which reports to the department of industrial policy and promotion(DIPP), under the ministry of commerce and industry.
Importance Of Trademark in Business : –
– Trademarks play an essential role in protecting consumers and in promoting global economic growth.
– Trademarks promote freedom of choice.
– Trademarks enables consumers to make quick, confident and safe purchasing decisions.
– Trademarks and related intellectual property encourage vibrant competition for the benefit of consumers, workers, brand owners, and society at large.
– The Trademarks play an important role for the commercialization and growth of the industry.
– Trademark establish goodwill between the source of a product or service and the consumer.
– Trademarks make it easy for customers to find you.
– Trademarks are an effective communication tool.
– Trademarks are valuable asset.
– Trademarks can make hiring easier.
– Trademarks are a bargain to obtain.
– Trademarks never expire.
The law of trademark deals with the mechanism of registration, protection of trademark and prevention of trademark and prevention of fraudulent trademarks. The law also provides for the rights acquired by registration of trademark, modes of transfer and assignment of the rights, nature of infringements, penalties for such infringement and remedies available to the owner in case of such infringement.
Trademark Registration and its importance in India : –
Trademark registration in India is one of the important things that can dramatically help in leveraging your business. The trademark distinguishes the goods of a certain trader or manufacturer from other similar goods and thus, the purpose of trademark is to protect the interest of both depicts the image of human beings, animals, letters, words, signature, numerals, or any combination of these.
The aim of the trademark law is to allow an enterprise through registering its trademark to exclusive rights to use, assign, or share a mark. Trademark can also assure you as the owner as this will help you protect your own product from your competitors even despite their similarities. You can protect your trademark through taking the necessary legal actions against your rivals should they try infringing your own trademark. The moment a company undergoes trademark registration, it will get the exclusive right for using the trademark nationwide and for every product listed under the registration. Trademark serves as the prima facie evidence of its validity following registration and this can give you the exclusive right as the owner for using your trademark in commerce. Trademark registration can prevent other people or companies from using your trademark and this is the reason why trademark registration is a big must. In case someone tries to infringe your trademark, you can legally fight back only when your trademark has been registered.
Stark difference between Unregistered and Registered Trademarks.
The primary difference between protections available for the registered trademarks for the registered trademarks and the unregistered trademarks is that the former serves as a statutory remedy while the latter in a common law remedy. For establishing infringement when it comes to registered trademark, it is important to establish that the infringing mark is similar or deceptively similar to the trademark that has been registered and no other proof is needed. The unregistered trademark may acquire protection where the services and goods have an extremely significant position in the market for the sales in that specific class of services and goods. Such trademarks are being used during the process of trade which is popular to the public in India. There are many benefits that you can experience when you register a trademark and use the services of a reliable trademark registration and protection services providers. Registering your trademark can heighten the protection that it receives, deterring others from others from using your own trademark and increasing the remedies in the even that someone disobeys upon the trademark. Trademark registration is probably the most important aspect of the intellectual property protection program of any company. With no trademark registration, your company will solely rely on the common law rights within the geographic area where it makes se of the trademark. Trademark is visual symbol, which may be a word, name, device, label or numerals used by a business to distinguish its goods or services from other similar goods or services originating from a different business. A registered trademark is an intangible asset for a business which is used to protect the company’s investment in the brand or symbol. A trademark is registrable if it is distinctive for the goods and services you offer.
Who can apply for the Trademark ?
Any person which can be individual, company, proprietor, or legal entity claiming to be owner of the trademark can apply. The application for trademark can be filed within few days and you can start using “TM” symbol. And the time required for trademark registry to complete formalities is 8 to 24 months. You can use the registered symbol next to your trademark once your trademark is registered and registration certificate is issued. Once registered a trademark is valid for 10 years from the date of filing, which can be renewed time to time.
Different types of Trademarks : –
– A name including personal of the applicant or predecessor in business or the signature of the person.
– A coined word or an invested word or any arbitrary dictionary word or words, not being directly descriptive of the character or quality of the goods/service.
– Alphanumeric or letters or numerals or any combination thereof.
– Image, symbol, monograms , 3 dimensional shapes , letters etc.
– Sound marks in audio format.
Online Procedure For Registration Of Trademark In India : –
You can also apply Trademarks Registration electronically through E-Filing.
– Receive a trademark application number.
– Online verification to assure error-free filing and obtain your filing date.
– Speed up the registration process.
– Print the completed application data and receive fee acknowledgment.
– Save the data locally in your PC.
– Be able to recall your contact details for subsequent applications.
– You can also view online history and status of the applications filed by clicking” Status of Filed Applications” and the online status of e-payments.
Documents Required For Filing A Trademark Application in India :-
– Trademark or logo copy.
– Applicant details like name, address, and nationality and for 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 in INR 100 stamp paper.
Benefits Of Trademark registration : –
1) Goodwill or Trust : – Trademark registration creates an intellectual property, which is an intangible asset for an organisation. Registered trademark is a right that can be sold, franchised or commercially contracted.
2) Makes trademark known : – A trademark registration makes the trademark known across the nation and becomes search- able in the trademark database. This prevents competitors and others from using your trademarks and puts them on notice.
3) Unique Identity : – Trademark registration will help establish a unique identity and brand for your goods and services. Competitors will not be allowed to use your trademark for similar goods and services. Trademark registration creates an intellectual property, which is an intangible asset for an organisation. Registered trademark is a right that can be sold, franchised or commercially contracted.
4) Legal Protection : – Only owners of registered trademarks allowed to take action or sue for damages in case of trademark registration. Trademark protection is not enforceable for trademarks that are not registered.
Conclusion : – Conclusion on trademark infringement is a conclusion about the similarity of a trademark with a infringer’s trademark, as well as about the uniformity of goods/services for which the trademark is registered with products/services that are used by the infringer.
Neha Khatri (Advocate)
(DELHI HIGH COURT)
Master of Law (LL.M.)
UNIVERSITY OF PETROLEUM AND ENERGY