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Trademark

A trademark is a name or a symbol used by a company on its products with a legal monopoly over it. Trademark is legally registered and basically serves the purpose of uniquely identifying a company or a product in the competitive market.
In a layman’s language, what a signature is to a man, a trademark is to a company. A trademark can be a logo, hallmark, tagline etc. As per The Trademark Act, 1999, a trademark is a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others.

In India, central government appoints controller-general of patents, designs, and trademarks for registration. A registered trademark can enjoy the tenure of 10years. The renewal period of trademark is 10years with the prior 6 months application of renewal before the expiry date of trademark. The symbol ™ is easily available within 3 days of filing the application similarly for symbol ® it has to complete two years in the market. 

Relevance of Trademark

It is highly important for a company to be uniquely identified in order to claim originality. The Trademark is an asset of a company that gives the company the claim over its other assets as it establishes ownership right of a company over its products. A trademark helps the consumers to identify any product of the company in a market full of competition ensuring originality of a product. It is a protective tool not only to the consumers against the fake products but also to a company as legal protection. A trademark prevents any unfair practices existing in an economy like the competitors adopting a similar name or trademark of a successful company to gain popularity. This could also affect a brand image. Having a trademark enables to license and sell a brand by having an exclusive right over a trademark upon the registration.

Who can Apply for Trademark?

Any person who is an entrepreneur of the product/work. ‘Any person’ includes:

  • An Individual :- The name of the applicant is required for filing an application for registration
  • A Company :-  A company’s application of registration for trademark should have its own corporate name. A trademark is a corporate symbol which helps to build the goodwill of the company. Along with that identify the company’s quality of work. For example: Nike with a logo and a tagline.
  • A Firm : – The name of all partners in partnership firm must be there in the application for trademark registration. If there is any minor in the partners than along with the name of guardian of the minor.
  • An NGO :- The name of trustee or manager of the trust who files an application for trademark registration.

Trademark Objection

Registration for trademark application may object by the trademark office because the officers find the trademark against the legal norms. There is always a valid reason for rejection of application such as

  • Selected trademark is identical or similar with already registered trademark  
  • Sentiments of any religion are attached with trademark
  • There might be possibility that trademark will hurt or create confusion in public at large
  • Trademark describing characteristics of the product

If there is any incomplete / wrong information in the application, the officer may raise questions about the same. If any of the above mentioned point is there, trademark officer may raise the objection. If objection letter is received, then there is 30 days of time to reply / respond to particular letter. There is no such government fee for reply back to letter of trademark objection. There is a professional fee, if you are filing your reply through SubmitTax.

How to escape from trademark objection?

There is no such procedure to escaping from trademark objection. There is only way to avoid such obstacle which is follows the proper procedure of filing trademark registration. Procedure for filing trademark registration should follow to avoid trademark objection which may lead to quick results.Applicant should avoid from using prohibited trademark under prevention of improper use Act, 1950.

Why Response to trademark objection letter is necessary?

Trademark registration of any product leads to give special protection. In which the applicant may protect his selected trademark and right to file legal case if there is any infringement. Trademark officers may find any information against the law; they may raise the objection for the same. Applicant should response to objection letter because:   

  • To protect the right, applicant gets opportunity to present the grounds that his trademark is unique from others
  • Applicant gets opportunity to appropriate proof evidence to defend its trademark from abandonment
  • Sometimes, trademark officers needs only clarification about the information of the product

The time period for reply to trademark objection is 30 days i.e. a month. If objection letter received from direct trademark officers and you did not respond to the, the officer may lead to abandonment of the trademark application.

    Trademark Assignment

    Trademark assignment and transmission is right to transfer of trademark ownership through assignment agreement generally called assignment deed. In other words, trademark assignment means applicant can transfer his trademark ownership rights to another party by signing the assignment deed or agreement. The trademark assignment can be made with or without transfer of goodwill. The applicant may sign the agreement and provide effectual receipt of consideration. 

    Exception to this law is that the applicant cannot provide multiple exclusive rights to more than one person in relation to the same goods and services. This law is prohibited under section 40 of the trademark act, 1999. 

    Recording process of trademark assignment

    • Unregistered trademark: The unregistered trademark can be transferred or assigned with or without goodwill. 
    • Registered trademark: The registered trademark can be transferred or assigned wholly or partly, in other words the applicant can transfer or assigned the mark either full or in part. Registered trademark must transfer with goodwill. 

    Styles for assignment of trademark 

    • Entire assignment: The applicant can transfer his full trademark ownership rights of the goods and services to another party by singing trademark agreement/ deed. After transfer full rights to third party, the applicant does not retain any rights with respect to the product. 
    •  Partial assignment: The applicant can transfer the part of trademark ownership rights of the product to third party. In other words, the partly ownership rights are assigned to another party. 
    • Assignment along with goodwill: As the rights and the value of product is attached with product are also transferred. This may award new owner to enjoy the assigned brand name with respect to the goods or services already sold under the brand name.
    • Assignment without goodwill: In this case, brand owner restrict the party whom the goods are transferred from enjoying the brand name of the product which is already used by the applicant. This is also known as gross assignment.

    Process to assign a trademark

      1. Collect basic information and documents along with this decide what will be the agreement type to be followed and write down the terms and conditions.
      2. Drafting of trademark assignment agreement 
      3. File the TM-P application

        Trademark Renewal

        A registered trademark enjoys long duration of 10 years. After 10 years, applicant can still enjoy the benefits of registered trademark for that they should file renewal application for trademark. The renewal application should file 6 months prior before expiry of registration. 

        There is still hope, if applicant forgets to renew its trademark because the register office will send you prior notice regarding renewal of your trademark. There is no such restriction for how many times applicant can renew its trademark.

        If the owner continues to use the mark than trademark rights may last long, unlike copyright, patent, or industrial design.

        Required Documents for Renewal 

            • Certificate of registration: Trademark registration certificate issued by the registry office. 
            • Applicant identification proof: Applicant identification proof like PAN Card or address proof.
            • Power of attorney 
            • Copy of TM-A  

        Profit of Trademark Renewal 

        • Trademark protection: If applicant registers his trademark under trademark act, 1999, he may approach the court if trademark is being infringed
        • Trademark security: Continuation of renewal of trademark leads to give trademark protection. Applicant fails to renew his trademark may lead to lapse of legal protection in brand name
        • Unique identity: Uniqueness of identity may continue which may lead the renewal of applicant brand name alive in the customers  

        Trademark Opposition

        Any person may file a notice whether he has or has not personal interest or commercial interest in the subject matter of application for trademark registration. A ‘person’ is any one like a customer, a purchaser or any citizen of the country who has interest at large or using the goods or services.

        Trademark opposition is filed after the registrar office issue the trademark application by looking it by every aspect of uniqueness and other factors, they might publish the trademark application in the journals for the opposition. In other words, trademark opposition is the opportunity to give the general public if they find anything improper; they can file a notice for opposition within a period of 3 months after the publication of trademark application in journal. 

        Tenure for filing opposition

        Any person can oppose the published trademark within the period of 3 months which may extend 1 month.

        Grounds for trademark opposition

        Grounds in which any person can oppose the trademark published by the registrar office in the journals.

        • The trademark is not according to the respective law or May does not define the uniqueness and distinct features which make tit similar with other products
        • There is no graphical representation of the products
        • The trademark is not capable of being distinguished from the goods or services from one person from another
        • The trademarks are creating confusion or deceive the public at large

          Advantages & Benefits of Trademark

          Identification & Distinction of Product or Services

          A trademark prevents an unfair competition by protecting the use of a symbol or logo or anything as a trademark. As within an economy, there are numerous companies who might keep a similar name. In that scenario, the trademark is the only thing that enables a consumer to distinguish between the products and select the desired product.

          Intangible Asset

          In case there is another company claiming the same trademark as another registered company, the registered company is given preference as the original trademark “registered” is their trademark.

          Legal Protection

          The act creates a unique legal identity through which a company or its product can be identified. All the companies with registered trademark have their names mentioned in the register maintained in the Trademark registry office.

          Classes of Trademark

          While filing the application for Trademark, the class of the trademark has to be specified according to the set of goods the applicant will deal with. It is important to choose the right class for the smooth process of registration without hindrances.

          Classes for Services

          Sr.NoCLASSDescription
          1Class-35Advertising, business management, business administration, office functions.
          2Class-36Insurance, financial affairs; monetary affairs; real estate affairs.
          3Class-37Building construction; repair; installation services.
          4Class-38Telecommunications.
          5Class-39Transport; packaging and storage of goods; travel arrangement.
          6Class-40Treatment of materials.
          8Class-41Education; providing of training; entertainment; sporting and cultural activities.
          9Class-42Scientific, design and technological services; industrial analysis and research services; design and development of computer hardware and software.
          10Class-43Services for providing food and drink; temporary accommodation.
          11Class-44Medical services, veterinary services, hygienic and beauty care for human beings or animals; agriculture, horticulture and forestry services.
          12Class-45Legal services; security services for the protection of property and individuals; personal and social services rendered by others to meet the needs of individuals.

          Types of Symbols

          Symbols: A trademark symbol is used next to a logo after the registration is approved.

          • The Symbol ™ signifies a common law right in a trademark. This does not guarantee that the owner’s mark will be protected under the Trademark law. The owner may use the symbol upon the refusal for registration of marks.
          • The Symbol SM signifies a common law right in a trademark but in connection with service mark covering services like banking, legal or any other professional service.

          The Symbol ® signifies a notice of registered ownership. The owner is protected under the Trademark law. This is issued only after getting the trademark certificate issued by the trademark authority.

          Package & Pricing

          Documents for Online Trademark Registration

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          PAN

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          Aadhar/ Passport/ DL/Voter ID

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          Passport size Photo

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          Email ID

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          Mobile Number

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          Wordmark or Logo

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          Authorisation Letter

          FAQ

          1. Who can file a trademark application?
          Any of the following claiming to be a trademark owner can file a trademark application-

          • An Individual
          • Body corporate
          • HUF
          • Society
          • Partnership Firm
          2. Is trademark registration mandatory?
          No, it is not compulsory. In India, there is both registered and unregistered trademark. However, it is compulsory to register for a trademark to protect a company’s identity.
          3. What can be Trademarked?
          • Any name
          • An invented word or any arbitrary dictionary word or words, not being directly descriptive of the character or quality of the goods/service.
          • Fancy devices, symbols.
          • Monograms
          • Marks constituting 3-dimensional signs
          • Combination of colors or even a single color in combination with a word or device
          4. What cannot be trademarked?
          • Geographical Location
          • Smell
          • Names/Surnames not possessing distinctive character
          • Numerical
          • Colors
          • Sound
          5. What is a good trademark?
          The word should be easy to remember and speak. It is suggested that it should be unique.
          6. Who benefits from trademarks?
          • Government, as it earns revenue by registration fees.
          • Legal professionals who offer service for registration.
          • Consumers who are able to judge and make a choice.
          • Company gainst frauds /competitors.
          7. What are the sources of trademark laws?
          • The Trademark’s Act, 1999.
          • National Bilateral Treaty.
          • International multilateral convention.
          • The decision of the courts.
          • Regional treaty.
          • The decision of Intellectual Property Appellate Board.
          8. a registered trademark be removed from the register?
          Yes, if the mark is wrongly remaining on the register, then through an application to the registrar.
          9. Can any correction be made in the application?
          Yes, in accordance with the rule of subordinate legislation.