Eligibility for Trademark Registration in India
Trademark registrations are commonly used to protect a person or entity’s brand, slogans, or invented terms. Individuals, corporations, and non-profit organizations can all apply for trademark registration. However, when it comes to submitting a trademark application, each kind of person or company has its own set of criteria.
For Individual
An individual who is not in the business of selling goods or services is also entitled to file a trademark application and get trademark registration for a term or symbol that he or she intends to use in the future. The applicant’s real name is essential when filing a trademark application as an individual.
Joint Owners
If two people join together and decide to file a trademark application, both of their names must be listed on the trademark application.
Proprietorship Firm
A sole proprietorship firm is not a distinct legal body and the individual who operates the business is entirely liable for its obligations. It is one of the simplest business types in terms of cost, degree of maintenance, and set-up. As a result, a proprietorship firm can submit a trademark application in its proprietor’s name but not in the business and proprietorship names. Those elements will be reviewed separately if the application includes a proprietorship name and a business name.
Partnership Firm
In a partnership company filing a trademark application, all of the partner’snames must be included in the application. As partnership businesses are not regarded as independent legal entities, the trademark application must include the names of all partners. The name of the guardian representing the minor should also be given if the partnership company comprises a minor.
Limited Liability Partnership or LLP
When a Limited Liability Partnership files a trademark application, the application must be filed in the name of the LLP. As an incorporated entity, an LLP has its own identity. As a result, the Partner cannot be the applicant alone, as an LLP must own the Trademark.
Native Company (Indian Company)
If a private limited business, a one-person company, or a limited company applies for a trademark, the application must be filed in the entity’s name. Because a corporation, unlike its directors, has its own identity. A company director cannot be the applicant; however, the application can be signed and filed by the Director or any officer authorized by the company.
Foreign Company
If a foreign incorporated firm files a trademark application in India, it must do so in its corporate name, as it is registered in the foreign nation. It is necessary to identify the kind of registration, the country of incorporation, and the statute under which the business is established. If the foreign firm does not have a significant place of business in India, the application should provide the applicant’s address for service in India.
Society or a Trust
Trustor Society organizations are those founded with the goal of providing social benefit rather than profit. If a trust is established based on a formal agreement in which a beneficiary retains the property and names trustees to manage the assets and activities, it is known as a trust. If a group of people get together for a common goal, it can be recognized as a society.
Both Trusts and Societies are allowed to register trademarks as long as they are done on behalf of the Trust or Society. The Chairman, Managing Trustee, and Secretary’s names are included in the application.
Documents Required for Trade Mark Registration
For Individuals and Sole Owners-
- Name and Address of the Individual/Proprietor.
- JPEG file of your logo in case of filing a logo mark.
- A copy of the text you’d want to trademark. If the trademark language is in any language other than Hindi or English, the original text must be accompanied by an English translation and transliteration of all the terms.
- Documentation supporting the trademark’s use: If the brand/trademark is already in use, there is a provision to file your application claiming the use of the trademark since the first date of its use. It is mandatory to submit an affidavit stating the date of first use in India (of the trademarked goods or services) prior to trademark registration along with its supporting proof of use.
- Registrable Goods and Services: There are various goods and services in the market and the same are divided into trademark classification from Class 1 to Class 45. Class 1 to Class 34 consists of manufactured goods and Class 35 to 45 covers all types of services. While filing your new trademark application it is very important to file in correct class with appropriate goods or services.
- Authority in the Law: An authorization letter must be filed if the original applicant does not submit the application. It’s vital to note that authorization letter requires the authorization of a certain individual, such as a trademark attorney or an agent. It is not possible to get a general authorization in the name of a company other than trademark attorney or a registered trademark agent.
For Partnership Firms and LLP Firms:
- Partnership Firm’s Name and its Partners Names: In a partnership company filing a trademark application, all of the partner’s names must be included in the application whereas for an LLP only the firm name can be used as Applicant Name.
- Registration of Goods and Services: A detailed list of the items/services for which the registration is sought as per the class applying for.
- Use Document: An affidavit stating the date of first use in India must be filed if the goods or services to be trademarked is in use (or has been used) in India prior to registration.
- Authority in the Law: For applications submitted through an external agency, anauthorisation letter is required.
Documents for Society:
- Registration of Goods and Services: A detailed list of the goods/services for which the registration is sought as per the class applying for as per the classification of goods and services.
- Use Document: An affidavit stating the date of first use in India must be filed if the goods or services to be trademarked is in use (or has been used) in India prior to registration.
- Authority in the Law: For applications submitted through an external agency, anauthorisation letter is required.
The following papers are necessary in order to claim 50% waiver in the government fees:-
- If your organisation is registered with DPIIT and you hold a DPIIT certificate of recognition for start-ups you can avail benefits of 50% discount on the government fee.
- AnUdyamAadhar/MSME registration certificate is also a valid certificate to claim the discount as per first schedule of the Trade Mark Rules 2017.
Advantages of Getting Trademark Registration
- Exclusive Rights
The owner of a Registered Trademark owns the mark exclusively. The applicant can utilize the same for all items that come under the applied class(es). Furthermore, the owner has sole ownership of the Trademark and can prevent anyone from using it without permission in the same category in which it is registered. It grants the right to sue anybody who uses the Trademark Registered without permission.
- Creates Atmosphere of Trust and Goodwill
By proving the quality of your goods and services, the Trademark promotes confidence and goodwill among market clients. It aids in the development of long-term clients who are loyal and always choose the same brand.
- Use of the symbol ®over your trademark.
The R in a circle ® means it’s a registered trademark, one can only use this sign over the trademark once it successfully crosses all the hurdles and procures the Registration Certificate. It is always better to show off your registration to attract your audience.
- Attracts Investors and Government Tenders.
Investors interested in investing in your brand or business will definitely want to know whether your brand is registered or not and this makes their decision to go a YES from NO depending on the status of your brand registration. Also, many government tenders requires mandatory Trademark Registration Certificate, moreover you can only register your brand successfully on (GeM) Government e-Market Place on presenting a registered trademark certificate.
- Enjoying benefits of selling on e-commerce portals.
Many e-commerce portals like Amazon, Flipkart, Meeshoetc requires a trademark registration in order to disallow infringers from selling products with same brand/listing.
- Creation of Invaluable Intangible Asset
The Trademark guarantees that the product and services are of the same, consistent quality and that the origin of the goods and services is known to everyone, enhancing consumer trust and reputation. It assists clients in retaining a sense of sustainability. The registration of a trademark procedure an intangible asset that is extremely valuable (in layman’s terms). Patents, copyright, franchises, goodwill, trademarks, and trade names are all examples of intangible goods that can’t be touched or seen. Intellectual property that has been registered can be sold, assigned, licenced, transmitted, franchised, or contracted commercially.
- It makes you Stand out in the Crowd.
It makes it simple for customers to locate your goods. It distinguishes your goods and their identity from that of present and anticipated rivals and serves as an effective promotional tool. Your company’s or any organization’s logo can express your vision, quality, or distinctive attribute.
- Promotes your Brand Name
It acknowledges the product’s superior quality. Customers associate the product’s quality with the brand name. This picture of a particular brand’s quality is formed in the market, which aids in recruiting new customers since they can distinguish the quality of a product based on the logo/brand name.
- Protects you in Legalities
No competitor or the third party may use the registered trademarked wordmark or logo. However, if someone uses it without the owner’s consent or in an unethical manner, the owner can seek legal protection under the Act to stop them.
- Attracts new Audience
Young people desire to work with major brands because they operate as a magnet. It promotes the organization’s favourable image, making candidates more easily drawn to them. As a result, the cost of recruiting and related operations is reduced.
What can you register as a Trademark in India?
Any mark that can make your firm or business activity outstand the others and graphically presented can be registered as a trademark in India.
When a trademark examiner objects to a trademark application under examination report, it is called a trademark objection. A trademark examiner may object to a trademark registration application by asking for legitimate justifications for the mark. You may feel free to contact us if you have already any objection pending under your trademark application.
A trademark opposition is an objection lodged by a third party against the registration of a trademark within four months of the Trademark being challenged being advertised. The Registry accepts contenders from any natural or legal person. This comprises individuals, businesses, partnership firms, and trusts (s). Notably, the person filing the opposition does not need to have an economic interest in the case or a previously registered trademark with the Registry to file the opposition.
Important things to know before getting Trademark Registration
Choose your Mark Carefully!
You must ensure that your mark is capable of distinguishing your company. If you are starting out or have a small business, you must pick your mark carefully. While a small number of startups find it simple to connect with a well-known brand, this is not a fair approach.
Select your Class
The first step in registering a trademark is to choose an acceptable class for trademark protection. In all, the trademark register comprises 45 classifications covering specific services and specifications. Choose the most relevant category for your company’s activity.
Thorough Search
The word mark or logo must be readily available for use. If an application for a similar or resembling mark has already been filed, you will face obstacles and objections. It’s better to get a professional’s advice for conducting a thorough search.
I hope the information above helped you in understanding the requirements for the eligibility as well as the importance of getting your brand Trademarked. Kindly let us have your comments or visit markshield for more concerns.
Naseem Sheikh is a trademark enthusiastic and has been practicing intellectual property law for close to six years.
