When an outsider looks at a business, the first thing they notice is the trademark. A trademark is where the identity of a business lies. It is the name and symbol under which a business undertakes its trade and commerce, which represents the company, and under whose aegis its business is conducted. It distinctively identifies an individual or organization.
In India, trademarks are regulated by the Trade Marks Act of 1999. The Act aims to provide registration and better protection towards trademarks while preventing the use of fraudulent marks.
What can be trademarked?
According to the Trade Marks Act, 1999 and the general legal position in India, the following can constitute a trademark:
- Invented or coined words
- Numerals, letters, devices
- Combination of colours and shapes of goods
- Domain Names
- Sounds (also known as sound marks)
- Three-dimensional (3-D) marks
What cannot be trademarked?
- A deceptive mark intended to cause confusion with some other mark.
- A mark that hurts the religious sentiments of a class or section of Indian citizens.
- A mark that contains vulgar, obscene or scandalous content.
- A mark prohibited under the Emblems and Names Act of 1950 (such as the Indian Flag).
How to choose a “good” trademark?
- The mark(s) should be easy to remember.
- It should be short and easy to spell and write.
- It may be aesthetically appealing.
- It should not ideally be descriptive in its nature.
- It can be fanciful and coined, to avoid confusion.
“APPLE” for computers is an example of a non-descriptive and arbitrary mark, which makes for good trademarks. “KODAK” for cameras is a coined term; that also makes a good trademark. “555” for cigarettes, “MICROSOFT” for software, “LAKME” for makeup, are all good examples.
How do you apply for a trademark?
- Conduct a trademark search that will let you know if there are similar trademarks that are already registered.
- Apply for a trademark registration. You can do this by yourself through the Government website, or get a lawyer to do it for you. The procedure of application is laid down in the Trade Marks Act, 1999.
- An application number is allotted for every pending registration, which can be tracked on the IP India website.
- If the application is accepted, it will be published in the Trademark Journal. If there are no oppositions, your trademark will be registered to you. However, if there are oppositions, there will be a hearing in the Trademark Hearing Office to decide on the final registration of the mark.
Trademark registration process
Check out the following infographic to understand the process of trademark registration in India:
There are certain cases in which a trademark registration may be refused.
For example, if the trademark is devoid of any distinctive character, the same may be an absolute ground of refusal for registering a trademark. If the proposed trademark is similar to an earlier trademark for any other similar or different good or service, the same is a relative ground of refusal for trademark registration.
Benefits of registering your trademark
In India, it is not compulsory to register a trademark. However, there are certain obvious benefits of registration of the same. The benefits are enumerated as follows:
- A registered trademark identifies and advertises the good/service.
- It protects the commercial goodwill of the trader/owner of the trademark.
- It protects consumers from buying forged or inferior goods.
- In the case of an infringement of a registered trademark, the owner has the option of civil and criminal remedies. In the case of an unregistered trademark, the only remedy available to the owner is the option of filing a suit of passing off.
What are the remedies available in the case of infringement?
Infringement of trademarks occurs when there is a wrongful use of a trademark by a person who is not the registered user of the same. Infringement may occur even for the use of a mark that is not identical, but deceptively similar to the original mark.
The registration of a trademark gives the registered user exclusive rights to enjoy the mark for himself. When these rights are violated, he may claim relief for infringement of his exclusive rights.
Remedies in the case of trademark infringement are only extended to owners of registered trademarks. However, unregistered trademark owners do have the option of filing a suit of passing off in case their trademark has been infringed.
Injunctions, damages, handing over of profits, etc., are some of the options available in a suit of infringement. In case, a trademark has been deceptively used for some purpose that has tarnished the image of the original trademark and the business to which it is attached, the case for infringement becomes stronger.
Trademarks law in India is developing slowly but surely. India is aiming to harmonize its intellectual property laws with international practices. With India aiming to become a part of the top economies of the world, it is important to have laws that are coherent and decisive and at par with the global standards. The trademarks law is simplistic. Its basics explained above are enumerated clearly in the legislation.
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