Trademarks – Everything you need to know (I)
What is a trademark?
It is a visual symbol which may be in a different form like numerals, device, label, name or combination of colours. This symbol is used by an organisation on any article, goods or services of commerce to differentiate it from the existing similar goods and services.
The legal requirements to register a trademark as per the act are as follows-
- It should be capable of graphical representation
- It should be such that it is different or distinguishable from the goods and services already existing in the market.
- It should be used in relation to goods or services to indicate a connection in the course of trade between the goods or services.
The function of a trademark
A trademark is primarily acts as an identification mark for a particular good or service and its origin. It also advertises the product or service and ensures unchanged quality. The graphical representation creates a reputation or image for the product or service.
Application for a trademark
In India, any person who claims to be the proprietor of a particular trademark us or proposed by him can apply in writing in a prescribed manner. Ideally, the application should include the trademark, the goods/services, name and address of applicant and agent with power of attorney, the period of use of the mark. The application can be in English and Hindi and should be filed at the appropriate office. The application can be submitted personally or can be sent via post. These can also filed online through the official website.
Requirements for filing a trademark
There are certain requirements that have to be adhered to for filing a trademark-
- Crucial details of the trademark that has to be registered like brand name, logo or slogan.
- The date of first use of the trademarks
- Details of the owner of the said trademark, name and address. Also if it is sought on company name, then name of all the members
- A form named, TM-48 and applicable fees for the registration
Different types of trademarks
Following are the types that come in to the ambit of trademarks-
- Any name (including personal or surname of the applicant or predecessor in business or the signature of the person), which is not unusual for trade to adopt as a mark.
- Combination of colours or even a single colour in combination with a word or device
- An invented word or any arbitrary dictionary word or words, not being directly descriptive of the character or quality of the goods/service.
- Sound marks when represented in conventional notation or described in words by being graphically represented.
- Letters or numerals or any combination thereof.
- The right to proprietorship of a trademark may be acquired by either registration under the Act or by use in relation to particular goods or service.
- Shape of goods or their packaging
- Marks constituting a 3- dimensional sign.
- Devices, including fancy devices or symbols
Benefits of trademark and registering it
- Creation of goodwill of products and services
- Protection of such goodwill
- Can sue for damages arising form unlawful use and secure destruction of infringing goods and labels
- Exclusive right to use the trademark (The exclusive right is however subject to any conditions entered on the register such as limitation of area of use etc. Also, where two or more persons have registered identical or nearly similar marks due to special circumstances, such exclusive right does not operate against each other.)
Formalities and government fees
- For filing new applications there are prescribed forms depending on the nature of application such as Form TM-1, TM-2, TM-3, TM-8, TM-51 etc. Fees: Rs.4000/
- To file a Notice of Opposition to oppose an application published in the Trade Marks Journal (FormTM-5). Fees: Rs. 2,500/- for each class covered
- For Renewal of a Regd. trademark (Form TM-12 ). Fees: Rs.5,000/-
- Surcharge for belated renewal (Form TM-10).Fees: Rs. 3,000/-
- Restoration of removed mark (Form TM-13) Fees: 5,000/-
- Application for rectification of a registered trademark (Form TM-26) Fees: Rs. 3,000/-
- Legal Certificate (Form TM-46) (Providing details of entries in the Register) Fees: Rs.500/-
- Copyright search request and issuance of certificate (Form TM-60) Fees: Rs, 5,000/