Unlocking the 10 Benefits of Trademark Registration
In today’s extremely competitive business market, you must have legal permission to own it if you possess something. Intellectual property (IP), which refers to intangible creations of the human intellect, must be registered in the form of atrademark, patent, copyright, industrial design, or geographical indication to ensure that illegal or unlawful people do not have the power to copy or represent your valuable assets.
Everyone deals with trademarks regularly, even if they aren’t aware of them. Trademark and the reputation that such brands represent have an impact on consumer purchase decisions. Business owners must understand why trademark registration is a valuable asset that may help them build their company.
First, we have to understand what a trademark really is.
TRADEMARK! WHAT'S THAT?
In common language, a Trade Mark is a source identifier for the Public to identify a product or service. The functioning of a Trademark is a concept which is used by many of us on daily basis without knowing the fact that the same is working in identification of a product and service. For example, Trade mark Law works when a person easily picks its choice of product from a super market among various others. It works for public in identification as well as for brand owners to get benefits of their hard work, time and efforts invested in the creation of the product or service. A product without its name is lost and cannot be easily found in the markets. Therefore, each product and service has been given a unique name which is called Trade Mark.
NOW! WHAT CAN BE A TRADE MARK?
The basic qualification of a good Trade mark is simple as that it has to be unique and capable of differentiating between one to another. The words which are common in industry and those other traders can adopt in course of their business cannot be a good option to adopt. The Trade mark law in India is governed by Trade Mark Act 1999 and Trade Mark Rules, 2017. The section 2 (M) of the Trademark Act, 1999 provide very broad definition of about a mark, the same reads as below:-
“MARK” INCLUDES A DEVICE, BRAND, HEADING, LABEL, TICKET, NAME, SIGNATURE, WORD, LETTER, NUMERAL, SHAPE OF GOODS, PACKAGING OR COMBINATION OF COLOURS OR ANY COMBINATION THEREOF.
The further clarification has been given in Section 2(1) (Zb) of the Trademark Act, 1999 as below:-
“Trade Mark” Means A Mark Capable Of Being Represented Graphically And Which Is Capable Of Distinguishing The Goods Or Services Of One Person From Those Of Others And May Include Shape Of Goods, Their Packaging And Combination Of Colours; And—
The above is self explanatory that a trademark can be anything subject to that it is graphically represented, unique in nature and capable of differentiating from the others.
WHY SHOULD A STARTUP REGISTER ITS TRADEMARK?
Startups may protect their brand by trademarking it. By doing the same, a company name, one distinguishes one’s services and goods from those of rivals, and one’s intellectual property is protected. It prohibits competitors from duplicating or stealing their brand.
BENEFITS OF TRADEMARK REGISTRATION IN INDIA?
1. Exclusive Rights only for Registered Trademarks: The owner of a registered trademark has exclusive Trademark Rights and can restrict any third company or individual from using it without permission. Furthermore, the owners are free to use the same trademark for all items or services under the applicable class(es).
2. Builds an Atmosphere of Trust: The goodwill and confidence in the market among consumers are established by the quality of your product or service that corresponds to the registered brand. Furthermore, a registered trademark aids in expressing your company’s and brand’s distinct qualities and vision.
3. Give Aid in Legalities: Your registered trademark in India cannot be used by a company competitor or anyone else. However, if another individual does the same, you can file a lawsuit for trademark infringement.
4. A Valuable Asset: You establish an intangible asset and get exclusive rights to sell, franchise, assign, and commercially contract your idea when you register a trademark.
5. Stand Out in the Tough Competition: Customers will be able to recognize your goods or service if you register a trademark. Consumers associate the product’s quality with the brand name, which builds the brand’s reputation in the market and draws in new customers.
6. Gives you Authority at least for 10 Years: Once you have a registered trademark in India, all you have to do is pay the renewal fees, which are due every 10 years from the date of application. Furthermore, Online Trademark Registration and Online Trademark Renewal is now accessible at a significantly 10% reduced cost. As a result, you may successfully establish a unique picture of your company or brand without putting much effort and at a reasonable cost.
7. The Symbol ®: After registering a trademark, you can use the ® sign to indicate that it is a registered trademark, and no one else can use it without your permission.
Top 10 REASONS WHY TRADEMARK REGISTRATION IS IMPORTANT FOR BUSINESS!
- Trademark Works as an Intermediate
Trademarks may transmit intellectual and emotional attributes and signals about you, your business, and its reputation, goods, and services in a single brand or logo. Your trademark doesn’t need to be a word or logo only. Regardless of language or alphabet, customers may recognize designs. The Nike “Swoosh” design is instantly recognizable in every language, including Swahili, Chinese, Spanish, Russian, Arabic, and English.
Know More About Trademark And Logo
- Protects you from Legalities
Failure in registration of a trademark exposes a company/person to lawsuits from competitors who may have registered a similar brand name, sign, slogan, or design. If this happens, a company will be obliged to change everything it has created, including the campaign, website content, and, to a significant part, it is brand identity.
- Helps you Spread your Business
A Customer without hassle can find a product of its choice with a registered trademark. The registered trademarks can be easily traced, and buyers can quickly reach your goods since it is an effective instrument with a distinct identity.
- Compliments your Products
Consumers can quickly recognize a trademark that conveys a specific level and quality of the goods. One glance at the Rolex logo, for example, shows that it is a high-end premium item with rigorous quality criteria. If someone else creates a low-cost watch with the Rolex logo on it, it will impact the luxury brand’s sales. Trademarks safeguard the quality that a brand represents.
5. Lifetime Ownership
Once a trademark is registered, it can be protected for life time by paying renewal fees on every 10th year in India.
- Helps in e-selling and Government department
In this global and modern world, Trade Marks have become vital part in smooth function of any type of business. When there are thousands of similar products and services are available to consumers in the markets, the Trade mark helps to Startups and small business to create and recognized their presence in the markets. Having a trademark registration helps Start-ups in doing hassle free business on well known platforms such as Amazon, Flipkart and Government e-tendering (GeM) and also helps in various government departments such as Custom Registrations and recording MRP labels in excise departments. Learn more about trademark registration for e-commerce business
- Protects your Reputation in the Market
Another advantage of trademark registration is that it protects a company’s reputation. Lamborghini, for example, is a high-end luxury sports vehicle brand that costs a lot of money. Now, if a manufacturer of a less costly automobile tries to affix the Lamborghini brand to it, the firm will suffer a significant loss of reputation. Discerning luxury goods, customers would be unable to link the brand with a premium, high-end product and would thus refrain from purchasing it. Naturally, Lamborghini wants to ensure that no one else comes out with a low-cost product with the same name and emblem.
- Registered Trademark is a Valuable Asset
Over time, trademarks can gain in value. Your Trade Mark will become more important and valuable as your business reputation grows. Trademarks can pave the door for cross-industry development, such as moving from personal care to clothes or eyewear. Your trademark can lead to your company’s purchase by a larger organization if you want it to.
- Builds an Atmosphere of Autonomy
It’s no secret that the market is very saturated across a wide range of niches, each with its size and purpose. It’s a very gruesome sight. As a startup, being even the tiniest fish in the tiniest pond is quite difficult. In this regard, a trademark might serve as a crutch; once a startup has established itself, it will want to keep its excellent name.
Trademarking a brand helps a young company defend itself from the market’s blows by donning a protective blanket; it both directly and indirectly notifies others that the people in charge of the company are serious about their work.
- Financial Benefits
A company’s trademark adds value and recognition. As a result, a corporation with well-known trademarks and brands in its portfolio has a positive market reputation. It also makes it simple to raise funds on the stock market or borrow money from lenders to grow into other areas. It also makes it easier to locate collaborators and partners.
For Trademark Registration you need to first understand about trademark classes in India
When starting a business, registering a trademark should be a top priority. It will safeguard a business from the start, ensuring its long-term prosperity. It is critical to protect a startup from the outset to acquire a competitive edge and avoid financial loss in the future.
We can’t see any reason why you should not get your trademark registered, can you? Do let us know your thoughts in the comment section below.
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Nagma Kacchi is a graduate of Mumbai University and she has an in-depth knowledge of branding and value proposition and has participated in various Intellectual Property webinars and is interested in exploring the legal world.
Difference Between Registered And Unregistered Trademark
BASICS OF TRADEMARK
A trademark is any sign, symbol, word, or combination of words that are registered or authorized for use in identifying a company’s goods or services. As a result, any alteration or unauthorized use of this trademark by any other person or entity provides the owner and proprietor of the Trademark the right to pursue legal action, making the trademark of a corporation the most crucial aspect of its existence.
In India, trademarks are governed by the Trademarks Act, of 1999 (‘Act’). The Trademarks Act follows the international Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS agreement).
Trademarks can generally be divided into two categories keeping in mind the legal protection they get: registered trademarks and unregistered trademarks. In this blog, you will get a brief insight into the difference between the two.
The Trademarks Act of 1999 establishes the legal framework for trademarks in India. The Trademarks Act follows international Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS agreement)
REGISTERED TRADEMARK
In order to statutory stop others from using identical or similar names, a trademark has been filed with the trademark registry and get it registered. It gives the owner legal protection and enables them to file a lawsuit for trademark infringement. The registration of a trademark preserves a proprietor rights, reputation, goodwill and gives them the right to take legal action. A Trademark Registration certificate is prima facie evidence of ownership of a brand name.
LEGALITIES OF REGISTERED TRADEMARK
The Trademarks Act, through its different sections, also provides specific incentives for trademark registration. The effects of Registration are covered in Chapter 4 of the Trademarks Act. In the case of a registered trademark, the aggrieved might seek civil and criminal redress in a trademark infringement action. Furthermore, registration offers some benefits under Section 28 of the Act.
The exclusive right to use a trademark in connection to products or services is granted to the registered proprietor of the trademark when it is registered. Furthermore, the registered trademark can seek remedy against infringement of the trademark under the Act’s provisions. Registration can be used as prima facie proof of legitimacy under Section 31 of the Act.
Registration grants the mark a monopoly right in a particular region. It enables a registered trademark owner to prohibit unlawful use of his mark in connection with goods or services. Here are some benefits that will excite you:
1. Legal defence: Having your trademark registered gives you legal protection from third parties using it without your permission.
2. Uniqueness: A registered trademark sets your company apart from competitors and aids in creating a strong sense of brand identification.
3. Exclusive usage rights: When a trademark is registered, the owner is granted exclusive usage rights in connection with the goods and services listed in the registration.
4. National protection is offered through federal trademark registration in India.
5. Public recognition: A registered trademark improves brand recognition and contributes to reputation-building.
6. Evidence of ownership: A trademark’s right to use and ownership are both shown by a registered trademark.
7. An expensive asset that can be licensed or sold is a registered trademark.
8. Legal presumptions are attached to a registered trademark. The validity and ownership simplify the enforcement of trademark rights.
VALIDITY OF REGISTERED TRADEMARK
A trademark’s registration serves as prima facie proof of its validity. As a result, regardless of public awareness, the trademark has an evidentiary value from the time of registration. The Online trademark registration is valid for a period of ten years from the date of application and a Trademark renewal request can be filed before the trademark office one year prior to the date of expiry. A trademark can be valid for an infinite time subject to a renewal request.
UNREGISTERED TRADEMARK
A trademark that has not been formally registered with the government or trademark office is said to be unregistered. The owner can still use this form of trademark, which is protected by common law, but they are not afforded the full range of advantages and safeguards that come with trademark registration. A trademark that is not registered may be more difficult to enforce and defend against infringement, it is crucial to understand.
LEGALITIES OF UNREGISTERED TRADEMARK
Although there is no action for infringement for unregistered trademarks under the Act, they can still be protected under the common law tort of passing off. To be successful in such an action, the owner must demonstrate that the unregistered mark has equivalent goodwill or reputation concerning the product, service, or company with which it is associated.
As a result, under the common law tort of passing off, the owner of an unregistered trademark may be entitled to restrict the use of an infringing mark by a third party. The notion that “a man may not sell his own products under the pretense that they are the property of another man” underpins the action against passing off. Passing off is a type of unfair trade competition in which one person attempts to profit off another’s reputation in a specific trade or company.
BENEFITS OF UNREGISTERED TRADEMARK
Here are some of the benefits of going with an unregistered trademark:
1. Low Cost: Unregistered trademarks are less expensive because there are no official registration costs to pay, which makes them more affordable for startups and small businesses.
2. Flexibility: Unregistered trademarks can be used more creatively and freely because they are not subject to the same stringent guidelines and limitations as registered trademarks.
3. Unregistered trademarks are simple to modify or abandon without the requirement for formal documentation or legal action.
4. Swift start: It is possible to utilize an unregistered trademark right away without having to go through the drawn-out trademark registration procedure.
5. Unregistered trademarks do not need to be renewed on a regular basis, unlike registered trademarks, which do.
6. Potential for later registration: If an unregistered trademark proves to be successful, it can always be registered at a later date for greater legal protection.
VALIDITY OF UNREGISTERED TRADEMARK
It is the owner’s responsibility to demonstrate the unregistered trademark’s value and goodwill. It is only when it has established a positive public image that it is granted protection. Please note- The owner of an unregistered trademark is responsible for demonstrating the duration or length of time that the reputation of the services or goods existing or existing in the market.
DIFFERENCE BETWEEN REGISTERED TRADEMARK AND UNREGISTERED TRADEMARK
Some key differences between Registered Trademark and Unregistered Trademark are:
1. Legal protection: Under trademark law, registered trademarks grant the owner legal protection, but unregistered trademarks do not.
2. Trademark registration: Unlike unregistered trademarks, registered trademarks are formally registered with the government.
3. Ownership proof: Registered trademarks offer ownership proof, whereas unregistered trademarks do not.
4. Registered trademarks grant the owner the sole authority to use the mark in a certain territory, whereas unregistered trademarks do not.
5. Owners of registered trademarks have the right to file a lawsuit to stop trademark infringement; owners of unregistered trademarks are not entitled to do so.
6. Government, courts, and the general public all recognize registered trademarks, whereas only the general public does so for unregistered trademarks.
7. Renewal: Registered trademarks require a 10-year renewal, however, unregistered trademarks do not have to be renewed.
REGISTERED v. UNREGISTERED TRADEMARK
FEATURE | REGISTERED TRADEMARK | UNREGISTERED TRADEMARK |
Legal Protection | Strong Protection from a legal perspective that is granted by the government and appropriate authority. | Only limited protection is available from the legal perspective based on common law. |
Official Records | Officially recorded with the government trademark office. | Not officially recorded. |
Symbol | Can use the ® symbol. | Cannot use the ® symbol. |
Enforceability | In case of infringement they are easier to enforce. | The owner encounters certain difficulties enforcing them. |
Renewal | Must be renewed periodically with a fixed fee. | No need for renewal or any fee payment. |
Exclusive Use | Only the owner possesses the exclusive rights to use it. | Only the owner shall use it but it may be difficult to prove exclusivity and ownership. |
Transferability | Can be sold, assigned, or licensed to another party. | May be transferred but the process is unclear and difficult to navigate through. |
National Protection | Protects the trademark where it is registered (nation). | Only protected in the particular region where it is prominently used. |
Legal Proceedings | In case of infringement, a legal proceeding can be instituted and won. | In case of infringement, a legal proceeding can be initiated but the chances of winning are very slim. |
won. | chances of winning are very slim. |
CONCLUSION
To conclude in a nutshell, there lie various similarities between a registered and an unregistered trademark but the differences are quite stark too. From a simple overview of the two, it is highly recommended to get your trademark registered because it increases your chances of staying protected. After all, precaution is always better than cure!
Naseem Sheikh is a trademark enthusiastic and he is a member of Bar Council of Delhi, Bar Council of India & Delhi High Court Bar Association
Trademark – Mark your territory!
A Trademark is a word, expression, image, or even a design plan that recognizes and distinguishes the products of one enterprise from those of others. A service mark whereas, is a word, expression, image, and additionally a design that recognizes and separates the source of a service rather than a product. A few models incorporate brand names, mottos, and logos. The expression “Trademark” is frequently utilized from an overall perspective to include both Trademarks and Service Marks.
Unlike license, Patents and copyrights, Trademarks don’t get expired following a set term of years. In this manner, a Trademark can keep going perpetually – for as long you keep on utilizing the imprint or mark in business to show the source of products and ventures and services. A Trademark enrollment or registration can likewise keep existing forever, provided that you file and record specific documents and pay charges at regular intervals.
The owner of a Trademark can take a legal action against somebody who uses his trademark without his permission. This is called Trademark Infringement. Most nations require formal enlistment or registration of a Trademark as a precondition for seeking after this kind of legal action. The United States, Canada and different nations additionally also recognize common law Trademarks rights, which means an action can be taken to secure or protect an unregistered Trademark on the off chance that it is being used by somebody else. Still, common law Trademarks offer to the holder, in general, less legal assistance than the registered Trademarks.
Types of Trademark Laws:
In order to serve as a trademark an imprint must be distinctive and unique – that is, it must be fit for distinguishing and recognizing the product of a particular brand. In deciding if an imprint or a mark is unique, the court’s bunch marks into four classifications, based on the connection between the imprint and the actual product: (1) arbitrary or fanciful (2) suggestive, (3) descriptive, or (4) generic. Since the imprints in every one of these classes vary according to their uniqueness, the necessities and requirements for, and the level of, legal protection provided for a specific Trademark will depend on which classification it falls under.
- An arbitrary or fanciful mark is an imprint or a mark that bears no logical relationship to the actual item. For instance, the words “Exxon,” “Kodak,” and “Apple” bear no actual deep relationship to their basic items (separately, gas, cameras, or PCs). Also, the Nike “swoosh” bears no inborn relationship to athletic shoes. Arbitrary or fanciful imprints and designs are completely unique – which means that they are fit for distinguishing and recognizing a basic item – and are given a high level of insurance.
- A suggestive imprint or mark is an imprint that inspires or evokes and suggests an attribute of the underlying good. For instance, “Coppertone” is suggestive name of sun-tan moisturizer, yet it doesn’t explicitly describe the fundamental item. A person has to be imaginative and creative in some way to connect the name of the brand to the product. Simultaneously, however, the word isn’t absolutely disconnected to the fundamental product. Like Arbitrary and fanciful imprints, suggestive imprints are intrinsically particular and are given a high level of legal protection.
- A descriptive imprint is an imprint that directly portrays a characteristic or nature of the fundamental product or service (for example its tone, smell, capacity, measurements, or ingredients, color etc.). For instance, “Holiday Inn,” “All Bran,” and “Vision Center” all describe some part of the actual product and service. (respectively, lodgings, breakfast oat, optical services). They tell us something about the item. Unlike arbitrary or suggestive marks, descriptive marks are not intrinsically distinctive and are secured and protected only if they have obtained “secondary meaning.” Descriptive imprints should face this extra obstacle since they are terms that are valuable for describing the fundamental item or product, and giving a specific producer or a manufacturer the exclusive right to utilize the term could confer an unfair advantage. A descriptive mark acquires secondary meaning when the consuming public primarily associates that mark with a particular producer, rather than the underlying product.
- A generic imprint is an imprint that portrays and describes the overall class to which the hidden item has a place. For instance, the expression “Computer” is a nonexclusive generic term for all computers. Conventional or generic imprints are not qualified for any type of security under Trademark law. Hence, a manufacturer selling “PC” brand computers (or “Apple” brand apples, and so on) would have no exclusive right to utilize that term regarding that item. Generic terms are not secured by Trademark law since they are basically excessively helpful for distinguishing a specific item. Giving a solitary producer command over utilization of the term would give that maker too great an upper hand and advantage over others. Under certain conditions, terms that are not initially generic can get generic after some time (a cycle called “genericity”), and in this way become unprotected.
Registration of Trademark:
According to section 18 (1) of the Trade mark Act, 1999, any individual professing to be the owner of a Trademark utilized or proposed to be utilized by him may apply in writing as a hard copy in the recommended way for registration. The application must contain the name of the imprint or mark, products and services, class in which goods and services fall, name and address of the applicant, time of utilization of the imprint or mark. Here an individual means a Partnership firm, association of persons, a company, whether incorporated or not, a Trust, Central or State government.
Benefits of trademark:
- Exclusivity: a trademark registration gives its proprietor exclusive ownership in the Register of trademarks and exclusive rights to utilize the trademark in India.
- Proof of validity: during legal procedures, the trademark’s enlistment is the by all appearances proof of its legitimacy
- Border protection: for requirement against infringing merchandise at the border, a trademark must be enrolled in the Register just as with the customs authority in India.
- Infringement action: the owner or registered client of the enlisted trademark can carry infringement procedures against any clashing imprint in India. Further, the burden of proof of probability of consumer confusion is assumed, and released from the proprietor in infringement actions.
- Security: registered trademarks can be used as security to avail loans similar to immovable properties.
However though, trademark registration under the Indian Act just has impact in India. To get trademark rights and security in different nations it is important to utilize and additionally register the trademark in those countries too. Trademark is all about territory in nature. A different registration should be made in every one of the nations where protection is wanted. To acquire security outside India, it is important to file applications in the desired nations exclusively. Furthermore, you should be mindful so as to apply for registration in a nation before you start utilization of your trademark in that nation. In certain nations, for example, Continental Europe, China, Japan and Indonesia, the first individual to apply for registration will be given the rights to a trademark, instead of the individual who first uses the trademark. Therefore, it is very possible for another person to legally and authentically steal your trademark by applying for registration regardless of whether you were the first individual to utilize the trademark or not.
Trademark
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