There was a time when we all put our name stamps on items or clothes we loved the most because they belonged to us, and the name stamp was a way of verification for us. The authority to own a tag that nobody else does in the corporate world is known as a Trademark. Trademarks could be anything – a symbol, a name, a word, a design that distinguishes the source of goods from the rest. The Trademark Act protects these trademark rights in India, 1999; it deals with the holder’s rights, its infringement and penalties for fraudulent use.
Trademark as defined under the Trademark Act 1999, Section 2 as “trademark means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include the shape of goods, their packaging and combination of colours.“
The Trademark Registry was established in 1940, even before the Trademark Act in 1999 and set all the rules and regulations for the functioning of the Act. To apply for a trademark, one must comply with section 18, and it should contain the complete details of the brand, the name, the category of goods and services etc.
Why is Trademark Registration Important
By trademarking your brand’s name, you protect your brand’s reputation built by scratch. The Trademark shows the uniqueness of your brand and creates a level of trust and loyalty with your customers. It is an asset to your company and provides legal protection in case of infringement by other companies. Though the legal process for obtaining the Trademark may be time-consuming, it is worth it as it is safe from infringement from larger companies.
Who can apply for Trademark Registration?
Trademark registration could be obtained by any organisation, individual, or joint-owner and can be protected for many uses and do not restrict a business alone. An individual can get these for any symbol or number for future applications. If joint owners register for a trademark, both parties must have their names on the application. In the case of partnerships, the applicant’s name must be used for the application for the Trademark and Private and Foreign companies, and the business name should be in the application.
The fourth schedule to Trademark Rules, 2002 contains the classes for the goods and services under which the Trademark can be registered. There are 45 goods and services, 1- 34 are goods, and 35- 45 are services. It would be best to look through these classes before choosing a service for your trademark registration. Some of the popular classes for goods and services are
- Class 5 includes pharmaceuticals and medical substances
- Class 25 includes clothing
- Class 35 Advertising, Business etc.
Documents required for Trademark Registration
You must make a list of all the documents required as the government would require proof for every document.
- Applicant’s basic details such as name, address, number etc.
- Identification proof of trademark owner
- PAN card, Aadhar card, Passport
- Trademark logo/symbol proposal
- Certification of Incorporation (Private companies and LLB)
- Signed Form- 48 attested by an attorney
- MSME certificate/Udyog Adhar certificate (optional)
Step By Step Procedure for Trademark Registration
- Trademark Search
Choose a name/symbol/logo for your business that strikes a chord with your business that could resonate with consumers and the target audience. Choose the goods or services classes under which the Trademark belongs. There are 45 goods and services so select all your business’s types. After you choose a brand, you can check the genuineness of your Trademark by logging onto the Controller General of Patents, Designs and Trademarks. On the website, you can check the public database for any sign of your brand.
- Application Preparation
You could apply for multiple classes for your Trademark or a collection of trademark registrations. Ensure the Form- 48 and ™-1 Act applications are filed by the trademark attorney. Ensure all the details are filled correctly and your logo size submitted perfectly with a dimension of 9 by 5 cm, and submit five copies of the same and two duplicates in the application form. These could be filed manually or electronically.
Online filing through the government website is recommended as the acknowledgement receipt is given sooner and you can use ™ next to your brand mark.
- Cost Requirements
INR 4500 – 5000 – Startups, individuals and small-medium enterprises.
INR 9500 – 10,000 – Established organisations and large enterprises.
- Government Processing
Once your application is submitted, the government examines the Trademark and the rules and regulations followed. The symbol should not identify anything even remotely similar to an existing trademark, as infringement cases can be piled upon you. So choose a unique logo and stand out from the crowd.
- Publication of Your Brand
Once your application is cleared after the examination, your trademark will be published in the Indian TradeMark Journals by the Trademark Registry. This is to confirm the opposition clearance for the mark, and if there is no sign of opposition for your trademark for 90 days, your process is cleared for the next step.
- Trademark Opposition and Hearing
After the Trademark publication, if there’s opposition from another party, then the Registry of Trademark will issue the opposition’s notice. You must then file a counter-attack on the opposition two months later than that the case will be rejected or abandoned.
Once the counterattack notice is issued to the opposition, both parties must carry evidence to support your Trademark for the court hearing. Both parties would be given court dates to defend your case and thereby would be decided as to who owns the brand.
- Certificate Issuance
If there has been no opposition from a third party, your application is cleared for your trademark. You would be issued a certificate of registration from the Trademark Registry, signalling that you could finally own that trademark and can start using it with ™. The trademark is valid for ten years; later on, it would need renewal and could be renewed indefinitely. Note that this certificate is valid only in India and not internationally.
Benefits of Trademark Registration
- Intellectual Property Protection – Once the trademark is registered under the national government’s ministry, the ministry legally protects the brand. The trademark ownership gives you the right to sue anybody who would infringe on your trademark.
- Legal Remedies – The legal privilege of being an owner allows you to dictate the terms in case of infringement; you could demand triple the compensation for your trademark infringement and time.
- Business Asset – Trademarks are a tremendous asset to companies as they can be sold, franchised or commercialised for any business required and under accounting and income tax purposes.
- Goodwill – Trademarks provide the legitimacy of a business and enhance the business reputation and net worth where there’s a recognition in the market for your brand. This will increase the customer base and retain the existing customers with trust and loyalty.
Frequently Asked Questions
The application could be rejected in case of similarity to another trademark or if it has a generic word where there would be no sense of ownership. The brand must not contain a geographical location or hurt any religious sentiments.
As soon as you receive the acknowledgement receipt from the government site, you are allowed to use the symbol. Once the allotment number is sent to your email address or phone number on electronic filing, you could start using it.
Businesses can co-exist together in different sections, so this might be helpful as you could file for an application if you belong to an additional classification, unless there’s a large conglomerate involved, where it is not possible.
Yes, a foreigner can apply for a trademark in India. However, an Indian registered certificate for a Trademark is recognised in India alone.
It could take anywhere from 6 months to a year due to all the procedures for the authentication of the Trademark. However, you can start using the ™ symbol right after receiving the acknowledgement receipt.