We have been in constant touch with the aspect of “Trademark” even though one might not know it by name. From the time we gain our consciousness of going shopping or purchasing cars, we always came around it. However, what does this word actually means? In addition, how one can file for the trademark? Why there are Adidas & Abibas in the market? In this short write-up, we are going to answer all the questions in the simplest way.
In nonprofessional’s terms, ‘Trademark’ is a mark, logo, or any word or symbol that depicts that it is associated with a certain company, when you look at that symbol or mark you can relate it to a Company. Trademark is defined under Section 2 (zb) of the Indian Trademarks Act of 1999 as a “trade mark” which 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 the shape of goods, their packaging and combination of colour.
The Major objective or trademark application to any goods & service is that Consumers can relate it with its origin and company and one can distinguish it from the low-quality products manufactured by the competitors.
Trademark Registration Process In India
Moving Further with our main question, ‘How One can Get the trademark for its product?’ meaning thereby to understand the Trademark Registration Process In India.
Understanding the concept by an example would be easier. Considering, there is a Pharma Company named XYZ ltd., which invented a product for curing diabetes, the name of that product is “Diabfree.” In order to protect the name from infringement, the counsel advises the owner, to register the name of the product under the trademark, the owner gave a nod to the counsel and asked him to file an application for the registration of the trademark.
Now Counsel has to go on with the following Procedure of the trademark to get the name registered: –
Public Search of Trademark
The First Step for Trademark Registration process in India is started with the public search of the trademark, means before filing an application, counsel has to search for the availability of the name in the register of the trademark. This means that one has to ensure that there is no other name, which is similar or phonetically similar to the name of the product. The question is, how one can find out whether it is available or not? The government IP platform provides the search engine for Public Search of the trademark. Therefore, in the present situation, the counsel has to search for the word/name and select the class in which category this product falls. “Diabfree” fall under class five which is Medicine, therefore, he has to search for a similar or identically similar word.
In a trademark, there are 45 classes classified for different goods & services. One has to choose in which class he wants to file for the trademark. One can also file for the trademark under every class but for that 45 different application has to be filed.
If the Counsel did not find any similar or identical word/name, then he will proceed with the next step, which is the filing of the application.
Filing of Trademark Application
To get the trademark registered one has to file a Trademark Application (TM-A) before the registrar of the trademark office or one can also file an application online through the official website of the government. In the application, you have to provide all the information about the mark and the company that is applying for it. TM-A form provided on the government website mentions the requisite documents needed for the filing of the trademark application.
The application for a trademark must contain the following information: –
- Name, Symbol & Logo of the Trademark.
- Complete Information of Applicant – Name, Address, Occupations.
- Classification of Trademark.
- Trademark used date along with user affidavit or if didn’t use in the past the proposed date for uses.
- A proper description of Goods & Services.
- Affidavit of the applicant
One needs to be very specific about every piece of information that is provided under the application because it is what decides the fate of the trademark as this is what will be examined by the registrar of the trademark. After filing this application, the IP Office will immediately provide the receipt for the application for further reference.
When the application is filed before the Registrar, she/he can take up to 12-18 months to examine the mark, it is up to her/him, if she/he is satisfied with the mark or not and whether the word “Diabfree” is violative of exception that is provided in Section 9-11 of Indian Trademark Act. After a thorough examination, the registrar will decide the fate of the mark; if she/he finds any discrepancies in the mark then she/he can reject or accept it with the condition. Additionally, one month is to be provided to the Counsel to fulfil all the conditions so that he can get the mark published in the trademark journal. If he failed to do so, he can also request a hearing to justify the reason and to get the trademark published.
The objective behind the publication Journal is to provide information about the new trademark that is passed by the registry office. If someone has any objection regarding the proposed mark then she/he can oppose the same between 0-4 months after publication. In case there is any opposition then the counsel has to provide the counter claim for the same after 30 days of trademark opposition, and if the registrar is satisfied with the reasoning then he will allow the registration of the certificate. On the other hand, if there is no opposition to the mark then it can proceed to the registration certificate.
Trademark Registration Certificate
Once the application proceeds for trademark registration, following the publication in Trademark Journal, a registration certificate under the seal of the Trademark Office is issued. Thereafter, officially the word “Diabfree” be registered as a trademark in the registrar of Trademark office.
Furthermore, it is to be kept in mind that the Trademark can be renewed after every 10 years. One has to apply to the registrar for the renewal of the trademark. From the above, it is apparent that getting your Trademark registered is a simple yet time-consuming process however the protection of your mark makes everything worth it.
Protecting a company’s goods or services can provide brand recognition and can be advantageous, but it can also have some anticipated and unanticipated drawbacks. The biggest drawback of trademark registration is that you have to pay fees every 10 years to keep it active because it only lasts for that long.
Having a registered trademark also does not give you access to the associated internet domain names. The degree to which similar trademarks infringe upon your business is a matter for debate in a civil action with related costs.
About Author: This article is written by Astik Dubey, a Student at Rajiv Gandhi National University of Law, Patiala and Anchal Raghuwanshi a student at Dharmashastra National Law University, Jabalpur.