Trademark- A Mark or Symbol which is capable of differentiating the goods or services of one person from others and may include their packaging, shape of goods, and combination of colors. A registered trademark indicates the person right as a proprietor to use the mark and it is protected under the “Trade Marks Act, 1999” and Section 2(1)(zb) defines trademarks and other relating marks. The registered proprietor has the exclusive right to use the trademark and protect it from infringement.
Trade Marks Act, 1999
Trade Marks Rules and Regulations
CATEGORY OF MARKS:
Before filing an application for registration, an applicant should know about the category of marks:
- Word Mark – It includes one or more words, letters, numerals, or anything written in standard character
- Device mark – It includes any label, sticker, monogram, logo, or any geometrical figure other than wordmark.
- Colour – Trademark consists of a combination of colors, combination of colors with or without a device
- Three-dimensional trademark – shape or packaging of goods
- Sound Marks – A trademark may consist of a sound and represented graphically by a series of musical notes with or without words.
CLASSIFICATION OF GOODS AND SERVICES:
The Trade Marks are classified into 45 classes as per NICE, and international classification standard for trademark registration. Out of 45 classes, the first 34 categories for Goods and 35 to 45 categories for Services.
TRADEMARK SYMBOLS AND THEIR USAGES:
The ® Symbol denotes the registered trademark. The applicant can start using the ® symbol after the completion of Registration. It signifies that the trademark is registered and protected from infringement under the Trademark laws.
The ™ symbol is used for unregistered trademarks for which the application has been filed by the applicant. The TM symbol is thus used to indicate the existence of a trademark application.
The ‘SM’ symbol is used for the service industry, which is specifically for service mark applications The Service Mark or SM symbol is used for applications that are filed under class 35-45.
DETAILS REQUIRED FOR REGISTRATION:
- Name of the proprietor(s)
- Business type
- Business objectives
- Brand/logo/slogan name
- Registration address
- Valid email id
- Principle place of business
- Type of Mark, i.e. Word, Label, Device, etc
TRADEMARK REGISTRATION PROCESS:
Section 18 to 24 of the Trade Marks Act, 1999 provides a detailed explanation regarding the procedure and duration of trademark registration.
The applicant must choose either of the following categories as an agent for the purpose of registration:
1. Registered Trade Marks Agent
3. Constituted Attorney
Step 1: Approach Trade Mark registry
Any person claiming to be the proprietor of a trademark used or purposed to be used by him and desirous of registering it shall apply in writing to the Registrar in the prescribed manner for the registration of his trademark. (Section 18)
Step 2: Public Search
Before a person claiming to be the proprietor of a trademark must know it’s availability. An applicant can check the availability of a trademark through a trademark public search on the official website.
Trademark Search is divided into three categories –
- Wordmark – For the similar representation of wordmark;
- Vienna Code – For similar artistic representation; and
- Phonetic – For phonetically similar words.
Step 3: Advertisement of Application
- When an application for registration of a trademark has been accepted, the registrar should advertise in the prescribed manner.
- In case of any correction or amendment made in the application, the registrar may instead of causing the application to be advertised again, notify in the prescribed manner.
Step 4: Opposition to Registration
- Any person may, within three months from the date of the advertisement or re-advertisement of an application for registration can oppose the registration by giving written notice in the prescribed manner to the Registrar
Step 5: Registration
Either the application has not been opposed and the time for notice of opposition has expired or the application has been opposed and the opposition has been decided in favor of the applicant, the registrar shall register the said trademark.
Certificate of Registration: Registrar shall issue to the applicant a certificate in the prescribed form of the registration thereof, sealed with the seal of the Trade Marks Registry.
Step 6: Jointly owned Trade Marks
- When two or more persons who use a trademark independently or propose so to use it, as joint proprietors, they may apply for registration of a trademark as joint proprietors.
- For the Joint trademark, two or more persons may apply for registration under section 24 of the Act.
Fees as prescribed in First Schedule of the Trade Marks Rules 2002.
RENEWAL OF REGISTRATION:
- The registration of a trademark shall be for a period of ten years, but may be renewed from time to time.
- The Registered Proprietor of a trademark shall make an application to the registrar in a prescribed manner and within the prescribed period before the expiration of last registration, can renew the registration of the trademark for a period of ten years from the date of expiration of the original registration or of the last renewal of registration
AUTHOR: S. JEEVITHA | COLLEGE: SAVEETHA SCHOOL OF LAW
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