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A trademark is an intellectual property that is depicted as a visual symbol, label, sign or design in order to represent a product by a manufacturer or the owner of the product or the company.
The main advantage of having a trademark is that it helps the potential customers to distinguish the products or services of one company or manufacturer from the rest.
The owner of trademark could be any entity that is an individual, partnership, company or other groups of persons. The owner of the trademark is provided protection as to the exclusive use of the trademark, or to authorize someone else to use the same in return of some payment.
One of the important aspect of trademark is that it is appealing to the eyes. Things mostly can be represented graphically which could be registered as trademarks. Trademarks include shape of goods, their packaging and colour combinations.
The Trademarks Act, 1999 (hereinafter referred to as the Act) is the legislation that has been established to protect trademarks in India. The Act lays down majorly the rules dealing with registration, protection and penalties against infringement regarding trademarks.
In India, the organisation that deals with the protection of trademarks are the Indian Patent Office administered by the Controller General of Patents, Designs and Trademarks.
WHO MAY APPLY FOR TRADEMARK?
An individual, company, partnership, proprietor or any other entity claiming to be the owner of the trademark can apply. The application for trademark can be made by these and within few days the applicant can start using the “tm” symbol.
The time which is usually taken for completion of trademark formalities is 18-24months. Once the trademark is registered and the certification is received the applicant can use the ® (registered symbol) next to the trademark. A registered trademark is valid for 10 years from the date of filing, which is eligible for renewal from time to time.
There are few steps of trademark registration in India which are as follows:-
TRADE MARK SEARCH :
The following tips could be useful while selecting a trademark:
- The trademark should be such which is easy to pronounce, spell and remember.
- Selecting a geographical name should be avoided as far as possible.
- Avoidance of laudatory words like best, perfect, super etc.
- To make a survey well in advance to ascertain is there is any similar trademark already in use
FILING TRADEMARK APPLICATION IN INDIA:
After the applicant is sure that the chosen brand name or logo is not listed in the Trademark Registry of India, one can opt for registering the same. The first step is to file a trademark application form at the trademark office. On application the status of trademark application can be viewed online. In addition to details of the applicant, the following information should be mentioned in the form:
(A) The class of goods for which the mark is sought should be specified. Classes can include textiles, food and confectionery, machine tools, etc.
(B) Definition of goods that is sought to be registered should be given.
(C) Details of the applicant including name, age, occupation, address, and nationality should be given.
(D) Whether the trademark is in use or is proposed to be used. If it is in use, then applicant must specify by whom it is being used and for what period.
RECEIPT AND EXAMINATION:
Receipt of the application is acknowledged by Registrar, by returning a copy of the application along with representation of the mark. An official number is allotted to the application.
All documents submitted are scrutinized by the office and searched among other trademarks to make sure that there is no plagiarism. After such searching, the registrar responds, it either accepts the application in absolute or asks for some modifications to be made or refuses the application in whole.
In case modifications are been asked for, the applicant must comply with them within the stipulated period usually of three months.
The aim of this step of publication is that anyone who has an objection to the registering trademark gets a fair chance to oppose the same. Anyone who has any opposition can object about the same and the opportunity of being heard shall be offered. After 4 months from publication there is no objection then the application proceeds for registration. In case of opposition; there is a fair hearing and a decision is given by the concerned Registrar.
Once the application proceeds for trademark registration, following a publication in the trademark journal, a registration certificate under the seal of the trademark office is issued.
This registration is valid for ten years and is renewable for subsequent consecutive periods of ten years. Non-renewal leads to a lapse of registration. However, a lapsed registration can be easily restored.
PRECAUTIONS OF TRADEMARK
How can we be sure and opt for good trademark!
> A good search
> No use of name of any geographic location
> Avoiding using abandoned mark
> No clerical error
> Avoidance use of very common words.
ADVANTAGES OF TRADEMARK
The owner of registered trademark enjoys exclusive right and sole ownership over the trademark. This means that anyone who in an unauthorized manner uses the trademark, the applicant has a right to sue the same.
- BUILDS GOODWILL AND TRUST IN CUSTOMERS.
The established quality of the product and services are known by everyone through the trademark and which, in turn establishes a sense of trust, belonging and goodwill among the customers in market.
- DIFFERENTIATES THE PRODUCT.
Trademark makes it easy for the customers to find out the products. It acts as an efficient effective tool.
- RECOGNITION TO PRODUCT QUALITY:
Customers attach the product’s quality with the brand name and this image is created in the market about the quality of a particular brand which helps in attracting new customers as they can differentiate the quality of a product by the logo/brand name.
- CREATION OF ASSETS:
Registration of trademark makes it an intangible asset i.e. Intellectual property for an organisation. Assigned, franchised or commercially contracted.
- USE OF ‘SYMBOL’:
Once the trademark is registered you can use the symbol on your logo stating that it is a registered trademark and no one can use the same trademark anywhere else.
- PROTECTION FOR YEARS AT LOWER COST:
Online trademark registration requires a very nominal amount and post that only maintenance charges are to be paid which too are affordable. Thus, all formalities are done at low and reasonable costs.
Trademark infringement is a violation of the exclusive rights of the trademark owner. The Rights which are infringed by anyone who does not have authorization over or any license is called infringement.
Infringement may occur when one party, the “infringer”, uses a trademark which is identical or confusingly similar to a trademark owned by another party.
In simple words, trademark infringement is the unauthorized use of a mark that is identical or deceptively similar to a trademark which is already registered. The term deceptively similar means that when an average consumer looks at the mark, it is likely to confuse him of the origin of the goods or services.
Penalties and Remedies for Trademark Infringement.
Infringement of a trademark in India is a cognizable offence.
Anyone who infringes the Trademarks Act or the provisions therein, the infringer may also face criminal or civil charges. The law also states that the charges would be applicable irrespective if the trademark is registered or not. In the case of trademark infringement, the court may award the following remedies:
- Permanent Injunction.
- Temporary Injunction.
- Account of profits (damages in the amount of the profits gained from the infringement)
- Cost of legal proceedings.
- Destruction of goods bearing the infringing mark.
In the case of a criminal proceeding, the court dictates the following punishment:
- Imprisonment for a period not less than six months that may extend to three years
- A fine that is not less than Rs 50,000 that may extend to Rs 2 lakhs.
Trademark is for protecting the name of the product or services rather than the product itself. It assures the customer about source of a product, though the quality of the product is not assured by the trademark. It is to be ensured that the trademark is unique and distinctive. Trademarks which are deceptively similar to other marks or geographical names cannot be registered as a trademark. In India, the Trademarks Act, 1999 is currently in force and all the trademark procedures, provisions are contained therein. The penalties against offences related to trademark can range from fine to imprisonment.