A Trademark is a sign, word, graphic, or symbol that you apply to your company, goods & services to differentiate them from those of your competitors. The Trademark Act, 1999, and the Trademark Rules, 2017, are the primary laws that govern India's Trademark Registration.
The trademark serves as a batch of origin for your business and its brand and product and can consist of word, logos, images, slogan, shapes, and colours, or a combination of all of these words and pictures are the most common form of the trademark but other unique Science can be registered so long as they are capable of being represented graphically.
Legislations Dealing with Trademark Registration
The Trademark Act, 1999, and the Trademark Rules, 2017, are the primary laws that govern India's trademark registration.
Also, at the international level, there are various treaties which govern the registration of a trademark, and India is a party to that treaty are:
Paris Convention for Protection of Industrial Property, 1883
Protocol regarding the Madrid Agreement Concerning the International Registration of Marks, 1891
Nairobi Treaty for the Protection of the Olympic Symbol, 1981.
The treaties that are governed by the World Intellectual Property Organisation (WIPO) which are applicable in India are:
Vienna Classification, established by the Vienna Agreement.
Nice Agreement for the International Classification of Goods and Services.
What are the Benefits of Trademark Registration?
Governing Body of Trademark Registration Process
The trademark registration legislation is managed by the Office of the Controller General of Patents, Designs, and Trademarks under the Department of Industrial Policy Promotions that comes under the Ministry of Commerce and Industry.
Filing and Trademark Registration
For Trademark registration, the trademark owner is required to submit the power of attorney to the agent. The owner (one who is filing the trademark registration application) is required to submit the power of attorney to the agent under the Stamp Act, 1899. The legalization of the same is not necessary. Now with the digitalization, the filing of application is also can be done through online mode. The attorney's power must be submitted before or at the time of application filing when the registration is through e-portal. The following information is required for filing a trademark application.
Name of the Applicant
The country of residence of the applicant
Description of trademark
Specification of goods/services
Power of attorney
The application fees
Priority claims and documents, where the priority of an earlier application is claimed.
In case the applicant is a Non- Resident of India (NRI), then the local service address must be provided.
E-Filing of Application for Trademark Registration
The Registry of Trademarks permits detailed e-filing of the marks that authorizes the submission of the trademark online, together with the entry of the above-provided information and the upload of the respective documents.
Additional information on the filing of an application for a trademark can be found on the website of Indian Trademark Registry.
The e-filing fee is 10% lesser than that for the actual filing under the Trademark Rules 2017.
Examination of Application for Trademark Registration
In the examination process, the registrar has the powers that he can accept or reject the application on two grounds that are absolute and relative grounds.
Absolute grounds
Section 9 of the Trademark Act, 1999 talks about the absolute ground for the refusal of the trademark;
The mark can be get rejected if it is deceiving the public or causes confusion among the public,
The trademark can be rejected if it is not capable to clearly differentiate the goods and services from those of other,
The mark consists exclusively of indications or marks which have become customary in the language or established practices of the trade,
The mark is contending any religious susceptibilities of Indian citizens.
If the mark indicates any kind of quality, quantity, value, geographical origin, or any other characteristics, such a mark can be rejected.
The mark which contains obscene matter
The use of a trademark is prohibited under the Emblems and Names (Prevention of Improper Use) Act 1950.
If the mark consists of any of the exclusive features:
1. The shape of the goods which indicate technical results
2. The shape gives substantial value to goods.
Simultaneously, the trademark, which was initially rejected on the absolute ground, can register again if it has a distinctive feature.
Relative ground
Section 11 of the Trademark Act, 1999 talks about the relative grounds of trademark registration. The trademark can be rejected on the relative ground provided in section 11.
The mark cannot get register if it is going to cause confusion among the people.
A mark cannot get registered in India if its use is liable to be prevented by any law.
A mark will not get registered if it is indistinguishable to an earlier trademark and is to be registered by another owner for goods & services that are different from those for which the earlier trademark is registered. The earlier registered mark is a well-known mark in India.
Rule 26 of the Trademark Rules of 2017 governs the representation of the mark in the application. It states that:
“Every application for Trademark registration must contain a clear and proper representation of the trademark, and it must be clear that the size of the trademark should not exceed 8 cm x 8 cm prescribed limit. In the registration application, the statement to the effect that the applicant wishes to claim a combination of colours as a distinguishing feature of the trademark, the application should be accompanied by a reproduction of the trademark in that combination of colours.”
Conclusion
Trademarks are valued business assets; a valid trademark owner to prevent the others from copying or otherwise taking advantage of the Goodwill in owners brand or company names in the case of a copy or infringement, an unregistered trademark of Limited protection that is why it is generally recommended to register a Trademark right at the relevant national or regional Trademark office or registered trademarks need to be renewed timely that is generally at ten years to keep it in force. The Trademark Act, 1999, and the Trademark Rules, 2017, are the primary laws that govern India's trademark registration.