The unique process, product, technology or service developed by an individual or an organization must be protected from infringement. The protection of these intellectual properties is granted to the owner with the help of the intellectual property right. The intellectual property rights include the Confidentiality and Assignment Agreement for Employees, Trade secret, Confidentiality Agreements, Patent, Service marks, Copyrights and Trademarks. A trademark is referred to as the branding of the name by the businesses as an identification mark. It helps to differentiate services and goods from the others in the commerce.
The name, picture, color, word, phrase, slogan, sound, domain name, smell and picture are used as the mark to represent the brand. A trademark builds the loyalty among the customers. It also increases their goodwill. But many small and medium businesses have not registered their business trademark. The main reason for not registering the trademark is either because of the lack of money and time. The lack of understanding the significance and they felt that it was not of much importance also matters.
Trademarks in India
According to the patent and trademark office in India, it is a distinctive sign that differentiates the products, or services or goods of an enterprise from its competitors. It provides the ownership rights to the respective person who owns the mark to distinct their products and services. This also prevents the fraudulent of the mark. It secures the intellect and skill of the company and prevents the unfair competitors from illegally using the mark. If the entrepreneur identifies his trademark infringement, he can apply to the court for the proceeding.
Apart from the traditional trademark, this law in India considers the un-conventional trademarks like the color mark, shape mark, hologram and sound mark and three dimensional marks.
- TM refers to the unregistered trademark and it is used to brand or promote the goods or services.
- ® This symbol refers to the registered trademark.
- SM refers to the unregistered service mark and is used to brand or promote the services.
Origin and Evolution
Initially the common law of passing off and principles of equity were administered for safeguarding the trademarks. It lacked in the nuances of infringement and certain legislative dealings. And thus the origin of the Trademark law came into existence in India in 1940. The statutory provision of the law corresponds to the English law and its precedence. In 1958, the Trademark and Merchandise Act was replaced instead of the Act passed in 1940 to enforce a robust proprietary law. The provisions were extended that relates to it like the Criminal Procedure code, Sea custom code and Indian Penal code.
In 1999, Trademark Act was passed to ensure the requirements of TRIPS. And to enhance the globalization of the technology and trade. But Act came into action only from September 15, 2003. In 2010, an Amendment was passed by the legislature for special provision relating to the Protection of Trademarks. Specifically under the Madrid protocol. Thus, the trademark Law in the country covers both national and international registrations.
The services and goods are categorized under different class and the payment also differs according to the class. The application is of three types, they are ordinary, multi-class and Priority or convention trademark.
Ordinary Trademark: This refers to the application filed in a single class of service or goods and this application is made on Form TM-1 along with the fees.
Multi-class Trademark: This refers to the application filed for more than one class. It is made on Form TM-51. Apart from the filing of the Collective and Certificate trademark, it can be used for filing the rest of the class.
Priority or Conventional Trademark: It refers to the registration of the mark claiming priority from the convention country. It is made on the Form TM-2 for a single class of goods and services. Form TM-52 is included within as it is used in applying for more than one class of goods and services.
Trademark Registration Process in India
The Trademark registration is valid for ten years from the date of application of the mark. Once the application filed along with the payment, the trademark proposed by entrepreneur is published in the Journal for opposition. If there is no opposition against the mark, it is registered under the applicant’s business.
If company fails to use the registered trademark for continuous 5 years, it becomes vulnerable to cancellation.
Period of registration: Section 23 of the Act of 1999 was amended in 2010 and a clause was included in the provision. According to that. – If the proposed trademark application has no opposition when published in the Journal, the Registrar can register the mark within 18 months. (from the date of filing the form.)
Clerical error of certification: If there are any corrections or modifications in the Certificate of registration, the Act provides the provision for correction. So the Registrar can amend the certificate for correcting the errors or mistakes.
Significance of Registering
Reputation of a brand and its popularity among the customers is influenced by the trademark and it is an asset for the business and determines the growth of the business. So, the entrepreneur must have a clear understanding about registration of the trademark and its benefit.
Communication tool: The marks can either be a name or logo or a catchphrase conveys the emotional and intellectual properties of the business, its reputation and the services or products. It attracts all the people around the world and increases the popularity of the business.
Easy for consumers: A trademark is a critical factor that influences the customers to identify the product or service among the competitors. Since the commerce is filled with a lot of businesses, a trademark represents the business to the customers and helps them recognize the service or product.
Online attention: Customers type the trademark in the search engine or social media while they look out for the services or process. It is used to increase the business raking in the internet and to increase the traffic and gains more customer recognition.
An asset: More popularity increases the value of the trademark in the commerce. Once when the value of the trademark increases, it paves way to expand the business in the marketplace. The trademarks are the asset, it can be sold, bought, licensed or even can be used as a security interest.
Increases employment: If a trademark becomes popular among the market, many people will strive to work under the enterprise and increases the job opportunity. It encourages the existing employees to work even harder and boosts the positive feeling towards the products or services.
Consequences of not registering the trademark
Even though registering a trademark is not mandatory or a must by the government, it provides more benefits for the company or an enterprise. Any business that fails to register their brand can face major mishaps.
Losing the brand name: If a business owner fails to register the brand name, there is a chance for some other business to use the name and register under their business. So if this happens, the business owner can no longer use the name for their business. Even if the trademark law considers the first user, because the trademark rights are territorial the court might divide the name according to the location where the business is operated, unless they do business all over India.
Similar phonetic: The brand names of two businesses can be similar regardless of the difference in their spellings. But in case any business owner has registered his trademark, he can legally oppose other business. If it is not registered, he cannot go for any such legal consent.
Cyber-squatting issues: There are many numbers of variations in the domain name in the internet. The business owner can claim to the (UDRP) Uniform Domain Name resolution policy if they have registered the trademark. And it helps to maintain the reputation of the brand. If they have not registered, then they cannot receive any legal help.
Trademark protection in india is also important exercise. It helps to avoid legal issues and to maintain the reputation among the clients and customer. Trademark registration process in india might be complex for entrepreneurs. Hence it’s better to hire an experienced lawyer or any professional CA for the same.
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