Trademark is a mark that graphically represents and distinguishes the difference between the produced goods and services between an individual and an organization. It includes the combination of colors, their packaging and the shape of the goods. The Trademark protection is valid for 10 years.
The Trademark protection was introduced by the Trademark Act of 1999 which protects the business owners of a trademark and those who violate the protection Act might face some serious criminal liabilities. It also protects the collective marks, service marks and certification marks. To obtain the benefits of the trademark protection, the business owners must register with the Trademark Registrar of the Registry of Trademarks in India. The Trademark registration office is located in some of the major cities in India like New Delhi, Chennai, Ahmadabad, Kolkata and Mumbai.
According to the trademark law in India, the names, coined or invented words, letters, numerals, slogans, sound marks, devices, signatures, shape of goods and combination of colors can be used as the marks to register the goods and services. The 3-D or three dimensional and smell can also be registered as a mark under the law. The domain names can also be included as a mark as long as it is used as the source identifier for the services and goods.
Collective Mark: This type of mark is used by an association or organization in which the members of the association will identify them with the level of geographical origin, characteristic set by the organization and the level of accuracy and quality.
Service Mark: This is similar to the trademark, but rather than the source of the product, it distinguishes and identifies the source of the service.
Certification Mark: This mark distinguishes the goods and service of an individual or organization from the others by the material, origin, performance of service, accuracy, quality, mode of manufacture and other factors.
Benefits of Registering
- The origin of the goods and services can be identified and can advertise the products.
- It protects the consumer from buying the duplicate or second-rate quality products.
- It establishes the goodwill of the traders among the clients and consumers.
- It is a constructive notice and an evidence of the ownership of the trademark.
- The jurisdiction of the Indian court can involve and the remedies offered by the Trademark Act of 1999.
- The Indian registration is used as the basis for acquiring registration in the overseas countries.
Classification of the goods and services
All jurisdictions inclusive of India classify the goods and services into a specific class for registration. Many countries follow the same kind of classification like the International classification of the goods and services. It consists of 8 classes of services and 34 classes of goods.
Need for registering trademark
Many business owners and entrepreneurs think that practicing the use of the trademark in the commerce is sufficient to protect their trademark, but by registering it can establish certain regulations and laws in the commerce. Registering in the trademark in India provides several advantages for the business owners like, it serves as evidence to the public as the claim of ownership of the mark. It ensures a legal presumption of the ownership nationwide and can bring an action concerning the mark to the Indian court. When the business owners get a registered trademark they can use the A ® symbol that signifies that the mark I registered under the Trademark Registry. They can claim that they have filed an application in the Trademark Registry by using the symbols like service mark ‘SM’ or the trademark ‘TD’.
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Before setting up the name of the business or the brand name, the business owners must make sure that the mark is not taken by any other. This can be checked by doing the database search of the Intellectual Property database. The process of running the trademark search is an easy step, first they have to select the wordmark and pick either of the options, ‘contains’ or ‘starts with’ before typing the mark they want to register. The result of the search reveals the registered name or mark is taken by another association or organization or an individual. If the mark is already taken, the business owners must change the name. But if the name is not taken by others, the phonetic similarities must also be verified. The name or the mark will be approved if there are no similar matches found in the list.
There are chances for the trademark to be taken by some other business, but under a different class. I such case the business owners can use the same name because they are under different class and that the brand name is not very popular among the public.
Trademark and Copyright are intellectual property
The trademark is a mark with which the customer identifies the brand and it prevents the business from having similar names in the commerce. It also ensures that the business earns royalty through the assignment agreements. It is valued indefinitely. Copyright on the other hand applies to the audio-visual and the literary works like photography, music and movies. It is the right given to the author, script writer, creator, software developer, musician and artist. Even though copyright registration is not important, but in the case of infringement a registered copyright gains more importance.
Things like names, titles, slogans, catch phrases, symbols and designs are protected by the trademark protection while any form of art and literature like dance choreography or an art gallery or a great novel can be protected by the Copyright protection.
Patent is different from Trademark
It is the right given to a person or an enterprise for their process or product. It protects the owners from the others from selling or making or importing or using the patent process and product with proper permission or approval. The patent right is valid only for 20 years, after which the process or product moves into the public domain.
Once when the application for trademark registration is complete, the attorney assigned to examining, will check the Trademark Registry to determine whether the name or mark proposed by the organization or an individual exists among the pending applications in the registry. The main aspects that the examiner looks for in the registry are the similarities in the names or marks proposed by the business owner and the classification under which the service or goods fall under.
If the attorney identifies that the mark already exist in the system, they will refuse the registration to avoid further confusion. Apart from this the attorney rejects an application because of the surname or ornamental, descriptive of the services and goods. Once when the application is processed from the attorney level, the mark is published in the Trademark Journal for the opposition. This will allow the public to oppose against the registration of the mark if they identify that it might cause them trouble. If there are no objections of the mark within 90 days of publication, the proposed name or mark will be approved within 12 weeks to 6 months.
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Cases of infringement
If the business owner or entrepreneur identifies that their registered trademark is used by some other organization or individual, they must consider the action seriously and take further steps to avoid mishaps in their business. For this, they have to identify the origin of the goods or service and send them a cease-a-desist letter. If the third party does not abide by the letter, the business owners can directly take the matter to the court and fight for their ownership of the trademark.
(Disclaimer: This is a guest post submitted on Techstory by the mentioned authors.All the contents and images in the article have been provided to Techstory by the authors of the article. Techstory is not responsible or liable for any content in this article.)
About The Author:
Anand Rajendran is a freelance writer living in Chennai, India. His interest in personal finance and budgeting began when he was earning an MFA in theater, living in one of the most expensive cities in the country (Chennai, TN) on a student’s budget. Today, he writes for a number of websites and keeps up his own Tax Consultancy Services named Uptra Consultancy Services