The fundamental function of a trade mark is to differentiate the trader’s goods or services from those of other dealers. Therefore, a trademark is a crucial part of any business since it not only identifies a trader but also informs customers that the goods or services displaying the mark are from a distinct source, distinguished from all other sources for those goods or services.
TRADEMARK IN INDIA
Trademarks help differentiate items not just inside the legal and economic systems but also with customers. They’re used to identify and protect phrases and design features that identify a product or service’s source, owner, or creator. They might be company logos, slogans, bands, or a product’s brand name. A service mark, like a trademark, identifies and differentiates the provider of a service rather than a product. The term trademark is mostly used vice-versa, to both trademarks and service marks.
The use of a trademark prohibits others from copying companies or individual’s products or services without authorization. The law restricts any Trademark that may create confusion in the market with one that already exists. This indicates that a company cannot use a brand name that visually or phonetically similar to, or has the same meaning as, one that’s already registered or used from a prior date—especially if the products or services are connected.
TRADEMARK BUSINESS IN INDIA
Trademarks are available for purchase and sale. For example, Nike (NKE) paid $35 to a graphic arts student in 1971 to obtain the immediately iconic Swoosh emblem. Trademarks can also be licenced to other businesses for a set period or under specific terms, resulting in crossover brands.
As previously stated, trademarks may be utilized to advertise brand names effectively. In reality, the importance of branding in business cannot be overstated, and the use of brands in marketing is legendary. Some trademarks, such as Kleenex, are so well-known and have such strong brand identities that they have almost completely replaced the noun that initially described the object or service, such as asking for a Kleenex rather than a tissue. The Kleenex trademark is owned by Kimberly Clark (KMB), which first introduced the name in 1924 as a disposable tissue for removing makeup. In 1930, the business reintroduced the trademark, this time as a handkerchief alternative. Since then, Kleenex has become the world’s best-selling face tissue.
Who can Apply for Trademark Registration?
Anyone who claims to be the trademark owner, whether an individual, a corporation, a proprietor, or a legal organization, can apply. You may file your trademark application within a few days and begin utilizing the “TM” sign. The trademark registry’s formalities might take anything from 5 to 24 months to complete. Once your trademark has been registered, and a registration certificate has been provided, you may use the ® (Registered sign) next to it. A trademark that has been registered is valid for ten years from the date of filing and can be renewed one year prior to the date of expiry in India.
How to Register Brand Name?
The Indian Trademark Office created under Trade Mark Act, 1999 is in charge of trademark registration. There are a few procedures to take when you want to register a trademark.
PICK YOUR UNIQUE TRADEMARK
A search (public search) on the official website of the Trademark Registry is conducted to see if your brand name or logo is similar to any other trademarks that have already been registered or applied. A trademark attorney often conducts this search with the Trademark Office to see whether any comparable trademarks have previously been registered in that class. Apart from the similarity, it is very important to check if the intent brand name and or logo are unique and capable of differentiating because, as per section 9 (1) of Trade Mark Act, 1999, no such marks are allowed registration which are common to trade, descriptive, generic or not unique in nature and finding the same is quite deep. Hence, one should consult with an expert before applying the brand, in order to save from any potential conflict, money, time and efforts in procuring the brand.
You can move on to the following phase if you’ve established that you’re unique.
TRADEMARK APPLICATION
If your business name/logo is deemed unique, the trademark attorney will create a trademark application based on the search findings. You must modify your trademark if someone else has the same or similar prior mark. Or if you believe the brand is legally yours and you have been using it for an extended period, even before other parties registered their trademarks. As soon as you fill out the form for a trademark application, you may start utilizing the TM sign.
TRADEMARK ALLOTMENT
The Trademarks Office will check your application on formalities and to see whether it has already been taken or unique in nature. If everything goes correct, Trade Mark Office publishes the Trade Mark Application in the Trade Marks Journal, which is published every Monday of the week. If no other firms object your brand name, within the next four months, your trademark will be registered.
HOW MUCH DOES IT COST TO REGISTER A TRADEMARK IN INDIA?
In India, trademarks are essential for any business or brand. Any company that wants to protect its brand name and logo must register their trademark in India. The Trademark Registry protects each brand name and logo in its relevant trademark class.
Trademark Registration fee
- Government fee: The same depends on the category of the Applicant which is for 10 years, per mark, per class. If application is to be filed in the name of individual/proprietorship basis then government fee is INR 4500 for online filing and INR 5000 in case of paper/physical filing. For all others (such as PVT LTD, LTD, LLP, Partnership firm etc.) is INR 9000 online filing and 10,000 physical filing. In case, the Applicant (PVT LTD, LTD, LLP, Partnership firm etc.) falls under Start-Up or MSME category- then the trademark office gives 50% discount and government fee in that case will be INR 4500. However, the certificate of MSME/DIPP has to be submitted at the time of filing the application in evidence.
- Registered Trademark Attorney Fee- An Attorney fee is always varying depending upon his experience and knowledge in the field. In India, the Attorneys generally charge INR 1500 to 5000 for preparing and filing a trademark application in one class. The attorney may charge you additional fees if there is any office objection, show cause hearing and public objection in your application.
KEY TAKEAWAYS
Although it is not necessary to register a trademark in order to utilise it, it adds significant value to a company. When others try to portray their own goods and services as yours by adopting a brand that is similar to or identical to yours, a company’s goodwill and image can be harmed.
Naseem Sheikh is a trademark enthusiastic and he is a member of Bar Council of Delhi, Bar Council of India & Delhi High Court .
