Trademark

The enhanced circulation of goods and services has now made it increasingly necessary to use a distinctive mark or brand name to identify a product, service or enterprise. This serves the interest of the producers of such products, the traders, as well as of the consumers. A trademark serves as a guarantee of the quality of products and services to the consumers.

Once a trademark has acquired a reputation, it makes it easier for the producer to get into new markets, which could also stimulate exports. Trademarks are distinctive signs capable of distinguishing and identifying goods or services produced or provided by one enterprise from those of others producing similar goods or services. A trademark is protected on the basis of its usage in the marketplace in some countries, or on the basis of registration in others.

Registration of a trademark provides the owner of the trademark a prima facie proof of its validity, ownership and reputation for the quality of goods or services to which the particular trademark relates. It also gives the owner the exclusive right to prevent third parties not having the owner’s consent, from using identical or similar signs for goods and services which either identical or similar to those in respect of which a trademark is registered. According to the TRIPS Agreement (Article 15.4), the nature of the goods or services to which a trademark is to be applied shall in no case form an obstacle to registration of the trademark.

As per the TRIPS Agreement (Article 16.2), in determining whether a trademark is well known, account shall be taken of the knowledge of the trademark in the relevant sector by the public. Factors for consideration in the determination of well-known marks also include the value associated with the mark concerned. In India Trademark law was enacted in 1958 and it has been amended in 1999 to conform to the provisions of the TRIPS agreement.

Cost

The cost of filing an application for registration of a trademark is currently Rs. 9000/- for efiling and 10,000/- for physical filing per class. Once you have got a registered trademark; it is much easier to take legal action against those who violate your trademark.

Process of Registration:

SEARCH:Conduct a trademark availability search (for depiction screen shot of Indian trademark search engine)
FILING: Trademark application to be filed with Trademark office (efiling –tmr and Trademark Application form both to be depicted)
EXAMINATION: Trademark Office examines the registrability of the application.
PUBLICATION: Acceptance of application by the Registrar are published in Trademark Journal (Provided by CDAC)
OPPOSITION: After publishing of applications in the Trademark Journal, third party (ies) can oppose the registration within 4 months in a prescribed format; applicant has the option to provide justification to the Trademark Office for such opposition.
NO OPPOSITION: Trademark is entitled for registration

Filing Requirements:

Describe your mark
Name of the applicant along with address
Describe the product and services on which the mark will be used
Suggest the classification under which the mark will be used

Advantages of Trademark Registration

Protects your hard earned goodwill
Protects your name from being used by others
Creates a favorable impression in the mind of your consumers
Helps in obtaining relief in case of infringement
Gives you right to license /assign trademarks

Under the Trade Marks Act for infringements:

An infringement suit must be filed immediately in the nearest District Court.
Both civil and criminal remedies are simultaneously available.

Relief and remedies include:

Injunction restraining the future use of the counterfeit marks
Order for delivery of the infringing labels and marks for destruction
Seizure and confiscation of the infringing goods by Police
Imposition of fines and penalties