Sitanshu Srivastava, 4th year-student of, MIT WPU Pune has written this article on “PROCESS OF TRADEMARK REGISTRATION IN INDIA”
Trademark
The Term trademark denotes any association of a brand or logo containing the symbol, letters, words, numbers, or phrases with goods or services of a company or individual. A trademark is a unique identity of an individual business or a company. Trademark helps customers to see the differentiation between different products. Thus, Trademark design and its protection are necessary to protect against illegal use by others.
Understanding Trademarks
A trademark is not only used for differentiation in legal and business systems but also significantly with the customers. These Marks are used to understand the true owner or developer of the particular product and service. They may take the form of company logos, catchphrases, musical acts, or product brand names. The terms “trademark” and “service mark” are frequently used interchangeably. Since they both identify and distinguish the provider of a service rather than a product. A company or individual using a trademark has rights that prevent unlawful use of their products or services. In addition, the use of trademarks that could be mistaken for other party marks is prohibited. This means that a company cannot use a sign or brand name that is identical or similar to an existing trademark. Particularly if it includes goods or services e.g. to use Coca-Cola or a name that sounds like “Coke”.
As long as the goods or services are used, the owner of the trademark is granted permanent rights under the Trademark Act, which has not expired. However, this law contains many exceptions. In order to take advantage of the protection offered by trademark law, the trademark owner must use the mark consistently and lawfully. This requires a company or individual to file a Section 8 declaration with the US. Patent and Trademark Office (USPTO) and to maintain its validity every five years for routine activities related to the invention, manufacture, marketing, and sale of products bearing a particular trademark. If this rule is not followed, the trademark registration will cease to be valid.
Significance of Trademark Registration
Trademark Registration is the most important part to get the exclusive rights to use the mark and the registration. It also protects intellectual property rights and establishes a strong brand presence. The Importance of registration can be understood by the following points;
Exclusive rights
The Registration provides the owner with the exclusive right to use it with specific goods and services. This granted the right to act as a defensive tool to prevent others from making a similar type of mark. As it will confuse and divert the customers. This right gives legal protection and helps to be in control regards to the commercial use of a trademark.
Brand Recognition and Goodwill
Trademarks are necessary for brand recognition and reputation in the market. Companies can differentiate themselves from their competitors and establish a distinctive brand by registering trademarks. Consumer trust and loyalty are enhanced when registered trademarks are used. It indicates the source and quality of goods or services.
Global Protection
A trademark registration gives protection to the trademark at the global level. It offers the expansion of the market in the world and lay a strong foundation for world trade It helps to prevent unauthorized use of the mark and ensures consistency and uniformity in brand recognition across many jurisdictions by registering it in several.
Business Assets and Value
Over time, the value of a registered trademark can increase. As a brand’s image improves, it can increase its value over time. Hence, resulting in greater market share and more dedicated customers. The ability to license, license, or sell a trademark increases a company’s profitability and allows for corporate contracting and cooperation.
Legal Protection and Enforcement
The legal status of the owner is strengthened through trademark registration. It creates a presumption of ownership and sole right to wear the mark as law. Hence, making it easier to enforce the trademark against infringers. The legal remedies, injunctions, and damages available to registered trademark owners for infringement are supported by the evidentiary value of the certificate of registration
Trademark Registration Process in India (Domestic Registration)
When you spend time and money developing a brand. Afterward, find that someone else is using the same brand name, taking over your hard-earned brand name is not a good situation. Many trademark owners (TM) owners get into legal battles which slip through because they neglect to register their brand name as a trademark in India It came when the opportunity came brand name and trademark registration is not a difficult task. It takes a few simple steps to register your brand name in India and get much-needed legal protection.
Trademark Search
Many businessmen do not consider doing TM searches. But only a unique and good brand name is not sufficient to Avoid a TM search. TM search gives the businessman the idea if there is a similar mark existing in the market and sometimes it also gives a warning to the businessman of the possibility of litigation. So the 1st step of registration is the Trademark search on the government website https://ipindiaservices.gov.in.
Trademark Application
After doing First Step make sure that the mark is not existing in the list of trademark registry India. The applicant can opt for the registration and which needs to be done with the Trademark Registry India. Moreover, registration can be done online
Examination
After submission is done the application will be examined by the registrar according to the Trademark Act. If some objection is noted by the registrar, then the report of that objection will be sent to the applicant within 3 months to 6 months of filing. The applicant has to reply to the report within 30 days of the receipt of the report and failing to do this will result in abandoning of application.
The Refusal can be done under 2 grounds one is Absolute grounds which is under Section 9 of the Trademark Act and Relative grounds which is stated in Section 11 of the said Trademark Act
- Relative Grounds – This ground states the similarity of an existing trademark with applicated trademark, Furthermore the grounds are as follows It is similar to the earlier trademark which will confuse the people
- Absolute Grounds – Trademark which contains the mark or indication which become customary in the current language or the established trade practice which can also confuse the normal people
After all the examination and confusion if the examiner is satisfied with the reply and changes then the trademark will be posted in the trademark journal. If the examiner is not satisfied with the changes, then he may put an application for the hearing on a date and time stipulated by him.
Publication/ Advertisement in Trademark Journal
The Next stage after the examination is publication in a trademark journal. This Advertisement is open to the public is someone wants to oppose it then filing of opposition can be done in this case. One mark is accepted that will be on the official trademark journal which is available on the registry website every Monday.
Opposition
Once the publication is done, any opposing person can file the notice of opposition with the registry. The filing needs to be done within 4 months from the date on which the Mark was advertised in the Trade Mark Journal.
Registration and Renewal
The Last step in this execution of trademark is registration and after that the renewal. The application will go forward with the registration where no notice was served by the opposition or in dispute the case decided in favor of the applicant. The registration and certificate will be given for 10 years and from period to period the renewal has to be done by paying renewal fees otherwise the marks will be removed from the register of trademarks.
International Trademark Registration
The process of obtaining trademark protection in several countries through a centralized registration system is called international trademark registration. It allows people and businesses to obtain trademark rights in multiple countries without filing separate applications in each country. The Madrid method of registration of international marks, administered by the World Intellectual Property Organization (WIPO), is the best-known method of international trademark registration In this way, trademark owners can submit an application called an international registration mark and identify countries seeking protection.
The advantages of registering a trademark internationally are numerous. By providing an integrated platform to submit and process trademark applications, it first simplifies the process. It is also cost-effective compared to filing separate applications in multiple countries. Additionally, It also provides an easy way to process new trademark registrations, amendments, and updates. It is important to remember that the creation of global trademark rights does not result from international trademark registration. Instead, protection can easily be extended to selected jurisdictions in accordance with existing national and regional trademark laws. The trademark office of each country will review the international registration under its own rules and decide whether to grant protection. Overall, international trademark registration through the Madrid system provides a practical and effective way for trademark owners to extend their protection across multiple countries, establishing brand recognition and promoting and protecting intellectual property rights worldwide.
Madrid Protocol
Madrid Protocol is basically designed as a treaty to simplify the trademark registration process. Under this system, an applicant can register one application in the home language with overall 90 member countries. This Madrid protocol simplifies the application process but the approvals are done on a country-by-country basis.
When India became a member of the Madrid protocol an amendment was done to the Trademark Act, of 1999 to make it comply with the Madrid system. International Trademark was introduced in India on 21 September 2010 with the passing of Trademarks (Amendment) Act, 210.
Madrid Protocol Working
For the Submission of international applications, domestic applications have to be filed within the home country. The applicant does not need to wait for the approval by the domestic country, once the basic application is filed then the process of international registration can be started.
The international submission is also filed through the home country’s trademark office with the Madrid protocol. They will certify the application before forwarding it to the World Intellectual Property Organization. The application will then be reviewed by the WIPO and they will send it further according to the indication of the countries in the application. Madrid protocol will not grant the trademark in every country, Each country’s trademark office will examine the request and they will consider the legislation of that country to make the decision. The notification of the decision can be heard within 12-18 months whether they have rejected or accepted the application. Once the applicant got the approval then the renewal has to be done every 10 years like the domestic application.
Conclusion – Process of Trademark Registration in India
Trademark registration is a complex but necessary process that provides brand owners with various rights and legal protections. By understanding the intricacies of trademark registration, individuals and companies can own their intellectual property. One of the main advantages of trademark registration is the legal protection it offers. A trademark registration gives the owner an exclusive right to use the mark.
Additionally, trademark registration offers many other benefits. It acts as a powerful deterrent to potential infringers, as a registered trademark symbol (®) lets others know of legal protection available Also facilitates the exercise of trademark rights, and it makes it easier for owners to take legal action against infringers and seek compensation for any unauthorized use and, a registered trademark is invaluable as an intangible asset. It can also increase a brand’s sales and marketing momentum, making it more attractive to investors, potential partners, and customers. Trademarks are often synonymous with quality, reputation, and goodwill, giving businesses a competitive edge in the marketplace.
REFERENCES
- Senthil Kumar| Process of Trademark Registration in India| Research gate| https://www.researchgate.net/publication/330994359_Trademark_Registration_Process_in_India > accessed on July 11
- Importance of Trademark Registration | Process of Trademark Registration in India I Legal Raasta| <https://www.legalraasta.com/blog/importance-of-trademark-registration/> July 12
- Siddhartha Mohanty| Process of Trademark Registration in India| Legal service India https://www.legalserviceindia.com/legal/article-8611-trademark-law-in-india.html#:~:text=Legal%20framework&text=The%20term%20’trademark’%20in%20India,indications%20(GIs)%20of%20goods accessed on July 12
- Process of Trademark Registration in India| S.S Rana &Co https://ssrana.in/ip-laws/trademarks-in-india/trademark-application-filing-process-india/ accessed on July 12
- Maya Shree Acharya | International Trademark Registration| Cleartax https://cleartax.in/s/international-trademark-registration accessed on July 13
- Madrid Protocol | United States Patent and Trademark Office https://www.uspto.gov/trademarks/laws/madrid-protocol accessed on July 14
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