What is a Trademark?

A Trademark identified by symbols ™ and ®, is a visual symbol which may be a  word signature, name, device, label, numerals or  combination of colours used by one undertaking on goods or services or other articles of commerce to distinguish it from other similar goods or services originating from a different undertaking.

What is covered under Trademarks?

A trademark is a mark used in relation to goods or services so as to indicate a connection in the course of trade between the goods or services and some person having the right as proprietor to use the mark.

What is the function of a Trademark?

Under modern business condition a Trademark performs four functions:

1) It identifies the goods / or services and its origin.
2) It guarantees its unchanged quality.
3) It advertises the goods/services.
4) It creates an image for the goods/ services.

Who can apply for a Trademark?

A person who claims to be the proprietor of the trademark can apply for the registration of its mark for goods as well services.
- In case of a company about to be formed, anyone may apply in his name for subsequent assignment of the registration in the company's favor.
- Before making an application for registration it is prudent to conduct a trademark search in the Trademark office in context of the already registered trademarks to ensure that registration may not be denied in view of resemblance of the proposed mark to an existing one or prohibited one.

Who can use a Trademark?

The right to use a mark can be exercised either by the registered proprietor or a registered user.

What is the penalty prescribed under criminal laws for infringement of a Trademark in India?

The penalty for selling or providing services using a false trademark is a minimum of six months and maximum of three years and with fine not less than Rupees fifty thousand but which may extend to Rupees two lakh.

What is the duration of a Trademark in India?

Term of registration of a trademark is ten years, which may be renewed for a further period of ten years on payment of prescribed renewal fees.

What are the types of Trademarks that can be registered?

Under the Indian trademark law the following are the types of trademarks that can be registered:

- Product trademarks: are those that are affixed to identify goods.
- Service trademarks: are used to identify the services of an entity, such as the trademark for a broadcasting service, retails outlet, etc. They are used in advertising for services.
- Certification trademarks: are those that are capable of distinguishing the goods or services in connection with which it is used in the course of trade and which are certified by the proprietor with regard to their origin, material, the method of manufacture, the quality or other specific features
- Collective trademarks: are registered in the name of groups, associations or other organizations for the use of members of the group in their commercial activities to indicate their membership of the group.

How to select a Trademark?

- If it is a word it should be easy to speak, spell and remember.
- The best Trademarks are invented words or coined words.
- Avoid selection of a geographical name. No one can have monopoly right on it.
- Avoid adopting laudatory word or words that describe the quality of goods (such as best, perfect, super etc).
- It is advisable to conduct a Professional Trademark search to ascertain if a similar trademark is already been registered.

What are different types of Trademarks available for adoption?

- Any name (including personal or surname of the applicant or predecessor in business or the signature of the person), which is not unusual for trade to adopt as a mark.
- An invented word or any arbitrary dictionary word or words, not being directly descriptive of the character or quality of the goods/service.
- Letters or numerals or any combination thereof.
- The right to proprietorship of a Trademark may be acquired by either registration under the Act or by use in relation to particular goods or service.
- Devices, including fancy devices or symbols.
- Monograms.
- Combination of colors or even a single color in combination with a word or device
- Shape of goods or their packaging.
- Marks constituting a 3- dimensional sign.
- Sound marks when represented in conventional notation or described in words by being graphically represented.

What purpose the Trademark system serves ?

- It identifies the actual physical origin of goods and services. The brand itself is the seal of authenticity.
- It guarantees the identity of the origin of goods and services.
- It stimulates further purchase.
- It serves as a badge of loyalty and affiliation.
- It may enable consumer to make a life style or fashion statement.

What are the benefits of registering a Trademark?

The registration of a Trademark confers upon the owner the exclusive right to the use of the registered Trademark and indicate so by using the symbol (R) in relation to the goods or services in respect of which the mark is registered and seek the relief of infringement in appropriate courts in the country. The exclusive right is however subject to any conditions entered on the register such as limitation of area of use etc. Also, where two or more persons have registered identical or nearly similar mark due to special circumstances such exclusive right does not operate against each other.

Can any correction be made in the Trademark application or register?

Yes. But the basic principle is that the Trademark applied for should not be substantially altered affecting its identity. Subject to this changes are permissible according to rules detailed in the subordinate legislation.

Can a registered Trademark be removed from the register?

Yes. It can be removed on application to the Registrar on prescribed form on the ground that the mark is wrongly remaining on the register. The Registrar also can suo moto issue Notice for removal of a registered Trademark?