Introduction:
A trademark is typically a word, phrase, name, symbol, logo,
image to distinguish a company's products and services from others. It is used
as a marketing tool for creating Brand value of a company's products or
services in market. A ‘Mark` may consist of any
word or invented word, letter,
number, signature, label, name written in a particular style, brand,
heading, shapes, or any combination thereof or a combination of colours.
·
If trademark is to be registered a mark should be
unique, distinct and capable of distinguishing goods or services from others.
·
It should not be misleading and
·
It should not be identical to an already registered
trademark of another person.
Types of trademarks:
According to Indian trademark law, following are the types of trademarks
that can be registered:
•
Product trademarks: are those that relate to
identify goods.
•
Service trademarks: are used to distinct the
services of an entity, such as the trademark for a broadcasting service,
retails outlet, etc.
•
Collective trademarks: are registered
in the name of groups, associations or other organizations which indicate the
membership of group for the purpose of involvement and utilisation of members
of the group in their commercial activities.
•
Certification trademarks: these are those which distinguish the goods or
services in connection with the course of trade and which are certified by the
proprietor in respect of their material, origin, quality, manufacturing
methodology and specific features.
•
Any name surname or person’s name or predecessor’s,
which is unique or not usual for trade, can be adopted as trademark.
•
Any imaginative, invented, random, arbitrary name not
being directly descriptive of the character or quality of the goods/service.
E.g. Apple, Sony etc.
•
Combination of any letters or numerals.
•
Sound marks
•
monograms
•
Combination of different colors, style with word,
numeral, logo or device.
•
Shape of goods or their packaging.
•
Marks with 3 dimensions sign
•
Fancy devices or symbols
Benefits
of Trademark Registration
Through registering the trade mark, the owner owns the
exclusive right to the use the goods and services of the registered trade mark
and indicates by using the symbol (R) and seek the relief from any violation/infringement
in appropriate courts in the country. However, there are certain limitations
regarding the exclusive right to use the trademark object i.e. limitation of
area of use etc. Also, when two or more persons have registered, identical mark
due to special circumstances such right does not operate against each other.
To register a trademark, the legal requirements under the Legislation
are as follow:
•
The mark should be able of being represented
graphically in the paper or in written. It should be different from the goods
or services from those of others.
•
It should be used or proposed to be used mark in
relation to goods or services.
•
Registered Trademark is valid for ten years, which may
be further renewed for ten more years on payment of prescribed renewal fees.
•
If the person does not use registered trademark for a
continuous period of five years then it can be cancelled on the behest of the
aggrieved party.
Requirements of filing a trademark application are:
•
The
name, address and nationality of the applicant.
•
A
list of goods and/or services for which registration is required.
•
Soft
copy of the trademark to be registered.
•
If
the application is to claim priority from an earlier filed application, details
of that application is also required (application number, filing date, country
and goods/services). A certified priority document or its duly notarized
copy is to be submitted.
•
Date
of first use of the trademark in India, if at all used.
•
Power
of attorney simply signed by the applicant (no legalization or notarization is
required). For Indian clients, power of attorney to be executed in 100 Rs.
stamp paper and signed by the applicant.
Remedies
for infringement of trademark in India:
If a third party uses the owner’s trademark following two remedies are
available to him. These are as follow:
•
Statutory Remedy - An action can be taken for infringement' in case of a
registered trademark.
•
Common Law Remedy -An action for passing off'
in the case of an unregistered trademark.
A court may even grant relief of injunction and/or monetary compensation
for damages caused or for loss of business. Although registration of
trademark is prima facie an evidence of validity of a trademark, yet the
registration cannot set off a prior consistent user of trademark because
priority in adoption of using a trademark is far more superior to priority in
registration of trademark.
Author:
This blog is written by Ms. Chanchal
Sharma, a passionate blogger of Aapka Consultant.
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