Trade Mark refers to a mark that is capable of distinguishing goods or services of one person from those of others. Essentially, it is anything that helps in the identification of the goods and services of a company by a common consumer. “Trade Mark” may include a device, name, signature, word, numeral, shape of goods, packaging or combination of colors or any combination thereof. Further Section 7 of the Trade Mark Act, 1999, provides for classification of goods and services in accordance with the International Classification for the purpose of registration of Trade Marks. In order to comply with the said provision, the Trade Mark registry refers to NICE Classification which can be accessed here. It specifies goods under class 1-34 and services under class 35 to 45. According to which the applicant seeks for exclusive commercial rights to sell their goods/services under their Trade mark, wherein these goods/services are classified under the above-mentioned classification.
Our Trade Mark Agent or Attorney conducts due diligence and Availability Searches at the Indian Trade Mark Office to confirm if there are any similar Trade Marks already registered under that particular class (or a related class), thereby verifying whether the mark is registrable under the Trade Mark Law or not.
Based on results of Availability Searches conducted, our Trade Mark Attorney will draft a Trade Mark application in furtherance of registration process. If the client’s mark is not a clear mark or is similar/ identical to existing mark the mark being proposed for filing may need to be amended/ changed.
It takes about one or two working days for a trademark application allotment number to be provided. At this point, the applicant may affix a “TM” symbol next to the Mark.
The Registrar of Trademarks applies the Vienna Classification to the Mark, based on its figurative elements.
All the trademarks whose registration is accepted by the Registry are published in the Trademarks Journal, published weekly. This gives the public an opportunity to object to the trademarks registration within a period of 90 days. For more details on Trademark Opposition please visit the (Trademark Opposition Page).
Once your Trade Mark Application is filed/ registered with the Indian Trade Mark Office. Trade Mark examiners examine and approve the Trade Mark Application. After the approval of the Trade Mark, it is registered and symbol can be used along with the mark, which implies that Trade Mark or Service Mark has been registered with the Indian Trade Mark Office.
Registration of a trademark is not mandatory. However, the registration is the prima facie evidence of the proprietorship of the trademark under registration. It is to be noted that no suit can be instituted for infringement of unregistered trademarks. Nonetheless, in case of unregistered marks, an action can be brought against any person for passing off goods or services.
1. Carryout Search using the “Start With”, “Contain” and “Phonetic” each in the drop-down instead of only “Start With” to have a broader and clear search. However, “Start With” normally provides only marks starting with the word of the subject mark.
2. Please note that Trademark Registry will also object if the name is similar sounding. Thus, for better results, search similar sounding words as well through the search option PHONETIC Example: A keyword like Kryzalcan have following terms that are similar sounding: Crizal, Cryzal, Creezal, Crisal, Crysal, Creesal, Krizal, Kreezal, Krisal, Kreesal, Krysal.
3. Also note that the website often encounters downtime error, and sometimes shows “no record found” while that is inaccurate. And thus a minimum of 2 time confirmation is recommended if such a scenario occurs.
4. Please note that the normal update in the portal is done on an average period of one month. Thus, recent filings may not reflect in the search.
5. If you find any result similar to your mark and the same/ similar class or same similar business description, the name is recommended to be changed to avoid any objection/opposition during the trademark registration process.
Yes, a registered Trade Mark can be removed on the basis of non use:
However, there are special circumstances under which non-use of the registered mark may be excused when there exist special circumstances in the trade, which includes restrictions on the use of the Trade Mark in India imposed by any law or regulation [Section 47 (3)].
Registration of a Trade Mark is valid for a period of 10 years. It can be renewed every 10 years. If no application is filed within six months after the expiration of the last registration of the Trade Mark, then the trademark expires.
The Application must be made for payment of the renewal fee within six months after the expiration of the last registration of the Trade Mark.
Below are the exemplary benefits of a registered Trade Mark:
(i) Gives Exclusive Right to the owner to use the mark in relation to his Goods and Services.
(ii) Prevents and restricts others from using same or similar mark.
(iii) Provides remedies to the owner at the time of infringement.
(iv) A registered Trade Mark can be used as a basis to obtain registration in some foreign countries.
Following marks can be registered under the Indian trademark law:
Yes as per the Indian Trade Mark Law, 3-D marks or Three Dimensional marks can be registered in India.
Yes, Sound Marks can be registered in India under the Trade Mark Rules, 2017 and it has to be submitted in the MP3 format not exceeding 30 seconds length recorded on a medium which allows for easy and clearly audible replaying accompanied with a graphical representation of its notations.
Yes, Domain Names can be considered to be Trade Mark or Service Mark. If it is merely used to indicate the URL or address at which a web site may be found, such use is not sufficient. It must be used as a source identifier for the Goods or Services.
It is not possible to register a Descriptive Trade Mark unless it has acquired distinctiveness or secondary meaning by virtue of long-standing use and the resulting recognition.
Yes, foreign proprietors can apply for registration of Trade Mark in India. The Indian Trade Mark Law is TRIPS compliant and provides for protection of well-known Trade Marks and recognizes trans-border reputation.
No, use of mark prior to registration is not mandatory in India. Trademarks that are proposed to be used can also be registered in India.
A trademark search can be conducted in India on the Indian Trademark Registry’s Indian Trademark Registry’s Website.
An action for Passing Off can be brought for misuse of an Unregistered Trade Mark.
It takes around 6 months to 12 months for the mark to get registered, in case no series objection is raised against the application.
The term of registration under the Mandrid Protocol is 10 years from the date of application. It is further renewable.
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An Application under Madrid Protocol / International Application can be filed in the following three languages:
This size can vary from 3cm x 3cm to 8cm x 8cm.