Stages of Trademark: A Complete Overview

A trademark is a discernible symbol that aims to differentiate between different commercial articles like goods and services, legitimately. It is also used for the identification of origin and advertisement of various kinds of articles of commerce. A trademark could be conventional like signature, numeral, device, pictures or it could be unconventional like combination of colours, holograms, shape of goods etc. Being legally recognised as a type of intellectual property, trademarks are known to protect the trademark owner from illegitimate exploitation of its goods or services and help differentiate them in legal and business systems.

Regulation of Trademark in India

Trademarks are regulated by the Trademarks Registry which was established in 1940. Trademarks Registry is known to administer the Trademarks Act of 1999, which was made to amend and consolidate all the laws related to the trademarks inside the country. While it is not necessary to file for registration of a trademark, it is recommended to do so, to protect the rights of the owner against the violator and to use that mark nationwide to catch the eye of the public for economic benefits and growth of the brand.

A trademark can be designated in many ways. The first being the symbol ™ , which used as an unregistered trademark to promote and market goods and services. The second way is to use ® which is used to signify a registered trademark. Another symbol that can be used to represent commercial article is SM, which used as an unregistered service mark to promote and market goods and services.

Trademark versus Service mark

While a trademark differentiates one’s goods or services from others’, service marks are generally used to differentiate and identify one’s service from others’.

Eligibility criteria to file a Trademark

Any individual, professing to be the owner of a brand name utilized or proposed to be utilized by him, may apply for enlistment of trademark in a prescribed manner. The application ought to contain the trademark, the merchandise/administrations, name and address of candidate with power of attorney along with the time of utilization of the mark. The application ought to be in English or Hindi. It is important to file the application at appropriate office.

The applications can be submitted at the Front Office Counter of the particular office or can be sent by post. These can likewise be recorded on line through the e-documenting passage accessible at the official site.

Procedure for Trademark registration

The procedure for trademark registration is stated in the section 18 to section 24 in Trademarks Act,1999. 

• It starts with writing to the registrar in the prescribed format along with the mandatory fee to Industrial property office or patents and trademarks office.
• The registrar might or might not accept the application of the applicant which will also be stated in written format by him.
• The application might be subjected to conditional acceptance as well. If the application possesses some errors, it could be withdrawn.
• First examination report is issued within eight to twelve months from date of filing the application. 
• Once the application is accepted, the acceptance would be published in the Trademarks journal by the registrar, which usually requires three to five months. This is done in order to notify the public about this new registration and to welcome opposition from public, in case the new registration causes confusion or deception in any way.
• Duration of three months is given to the public in case they have any objections related to the registration of new trademark.
• In case of zero opposition, trademark is registered and the owner is provided with a certificate of registration.

Renewal of Trademark

A trademark which has been registered by the trademarks registry can be renewed every 10 years. There is no limit to renewal of trademark and it can last perpetually.

Refusal of Trademark registration

The trademarks registry can refuse to register the trademark in many conditions. If the applicant’s trademark is descriptive of good or service, isn’t able to differentiate between one’s good or service from others’, contains geographical origin, time and place of origin of goods or services, hurts religious sentiments of the public, contains obscene visuals, specifies the kind and quality of the goods or services. Thus, before filing for registration of trademark, applicant should make sure that the trademark isn’t falling in the aforementioned categories.

Trademark Infringement

Trademark infringement is illegitimate use of trademark which is related to any goods or services and violation of rights related to those goods/services. Trademark infringement occurs when a person or a business uses a trademark which is somewhat identical to the trademark owned by a registered owner. Infringement proceedings can only occur if the trademark owner is a registered within the trademarks registry. Proof required to file trademark or service mark infringement is basically visual representation of how deceptively similar is the infringer’s trademark.

Passing off is a type of trademark infringement in which a person or a business represent their goods or services as a part of others’ goods or services. Passing off is subjected to unregistered but publically well known trademarks. The owner of unregistered trademark can sue the violator under passing off action in appropriate court of law.

Cancellation of a Trademark

In case the registered trademark is not used for five consecutive years, it may be cancelled for non-use and is termed as invalid. Cancellation may also happen if the trademark has lost distinctive feature. Degeneration of the trademark may also happen if the trademark has become a descriptive mark i.e it has become a generic term to describe any good or a service.

Takeaway

As per the law, Trademarks aren’t necessary to be registered. However, it is a wise decision to register trademarks and it protects the owner’s rights from being violated. Trademarks provide legal ownership to the trademark applicant, which also allows him or her to have easy access to loans and monetary benefits. Trademark is a brilliant idea that protects both consumers and businesses.

Contact Legal Window now to help you register your brand today.