Trademark and Its Regulations
The registration of your product holds enormous significance as it ensures your mark isn’t misrepresented in the market, safeguards your goodwill, ensures control over advertising and branding, and the list can go on. Subsequently, it is important to know what kind of activities should you undertake and the kind of rules that you should follow while getting your trademark registered. The fundamentals behind this process may seem tedious but if followed appropriately, provide you with numerous benefits and security. Hence this blog will give you on insight on what all rules need to be followed.
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A trademark is an intangible asset that alludes to any form of visual representation be it a word, symbol, or phrase which establishes and distinguishes the products or goods manufactured by a company. There are many types of trademarks such as product mark, shape mark, service mark, certification mark, sound mark, collective mark, pattern mark, etc. It helps in the validation of any source the trademark originated from, quality reassurance of the product as well as protecting the associated goodwill of the organization.
Under The Trademarks Act 1999, a trademark if registered comes to be known as a registered trademark. The proprietor of the registered trademark enjoys the exclusive rights to solely use the relative mark and file a suit if the said right is vitiated via a second party that infringes upon the same. An unregistered trademark though not eligible for being imparted with legal benefits, can be protected under the common law by the tort of passing off orders.
In case one wishes to register their brand under The Trademarks Act 1999, they need to meet certain canons. The following entities are pertinent for the procedure:
- Joint Owners- The mention of both the names is a requisite for joint owners to register.
- Proprietorship Firm- Since the owner of the business is the one solitary individual responsible for debts and the firm is not considered a separate legal identity, merely the name of such individual should be mentioned.
- Partnership firm- This type of business organization comprises of various partners all of whose names should be mentioned under the application. In case the partner is a minor, the guardian’s name must be taken into account.
- Limited Liability Partnership- The application should be applied for by the name of the LLP due to them being acknowledged as their own identities.
- Indian company- Any company incorporated as a Pvt limited company can be registered for trademark by using its own name.
6, A trust or a society- Such organizations which are inclined towards the purpose of social welfare and community service are applicable to get their name registered for the application.
The Application process-
To get a trademark registered an application needs to be filled out by the proprietors of the organization. Following are the steps that need to be adhered to for the same:
Selection of the trademark- The selection process should be convened strategically with the consideration of all trademarks being used in the market irrespective of them being unregistered or registered.
Filing of the application- An application of a form is Form TM-A which can be done online by the official IP website or in person at the Trademarks Office. It can be registered in a single class or multi-class.
Single class trademark application- Trademark/ service mark can get registered under any specified class of goods or services
Multi-class trademark application- A trademark/ service mark is to be registered under two or more specified classes of products or services.
3) Examination of the application- Per the Trademarks Act 2016, the government authorities issue an examiner. If any objection against the application is raised, then within a time window of 30 days concise evidence has to be presented for the relinquishment of the aforesaid.
4) After the application of the reply- Once the reply is submitted to the examiner, a hearing will be appointed if the examiner isn’t content. Afterward, the decision of the future proceeding for either the publication or the rejection of the application will be taken by the examiner’s analysis.
5) Advertisement of the trademark- The trademark has to be published in the Trade Marks Journal for 4 months for the public to become aware.
6) Opposed views from the public- If a person facing implications wants to come forward and object against the trademark can file a complaint by filling the Form TM-O within the duration of 4 months of the publication in the Trademarks Journal.
7) Registration of trademark- After all the hindrances and opposition, the continuance of the registration goes on and ultimately gets registered.
In A.R. Khaleel And Sons vs Registrar of Trade Marks in India on 29th June, 1962, the matter of dispute was based on the expression of “Speed master” which was used in relevance to the watches, alarm clocks, and other chronological instruments. The expression blatantly morphs a rather descriptive image of devices used to measure time and does not match the requirement of being invented through amalgamating two separate words.
Thus the selection process should be carried out with due consideration and should be subject to magnified thought.
According to the manual of trademarks, in case of noncompliance of filing, under Section 150 Rule 11(2) & 11(5).
“If a document received for filing at the Trade Marks Registry fails to comply with the Act or the Rules regarding the filing of documents:
In case of fee-bearing documents wherein the appropriate fee has not been paid, the concerned document shall be deemed not to have been filed. The document shall be deemed to have been filed only when the appropriate fee is received.
Dishonour and non-realization of a cheque shall be treated as an appropriate fee not having been paid.
Non-realization of Demand Draft for any technical reasons shall also be treated as an appropriate fee not having been paid.
In case of non-fee bearing documents, the documents will not be accepted if it is unsigned or does not contain the referred application /opposition/rectification / RU/CC number.”
Conclusion
Adherence to these provisions is important not only for the business proprietors but the public and market as a whole as well. The assiduousness put behind transforming an idea into reality is sacred to an individual, which is why their credit must not be purloined. However, what you sow is what you reap. If you readily accept and acknowledge the methods prescribed by law you will certainly receive protection and perks on reciprocity. These simple steps will lead to a fruitful output and make your business more secure and prosperous.
Author: Gurveen Kaur – a intern at IP And Legal Filings, in case of any queries please write back us via email at support@ipandlegalfilings.com.
