Trademarks

What is a trademark?

A trademark, also called a brand name, is a word, logo, slogan, device, symbol, signature, numbers or a color combination that is used to identify the goods and services of one person or business in commerce. It also distinguishes the goods or services of one person or business from others in the market. A person who sells goods under a particular trademark acquires limited exclusive rights to use the trademark in relation to these goods or services. In India, such trademarks are protected under the Trade Marks Act, 1999. 


What is a service mark? 

Simply put, a brand name used to identify services, rather than goods, is a service mark. A service mark can also be any identifying word, logo, slogan, symbol, device, numbers etc. that is used to distinguish the goods and services of the brand owner with others. While trademarks identify the source of goods, a service mark designates the provider of a service. For example: the brand name used by a dry cleaning service provider would be termed as a service mark since it provides a service instead of offering a physical product. 


What can generally be registered as a trademark or service mark in India? 

Generally trademark law protect names, numerals, logos, slogans, devices, color combination, shape of goods, signatures and other similar identifiers that are applied to or intended to be applied to a product or service. The basic qualification for registration of a trade mark is contained in the definition of trademark itself, namely, (a) capable of being represented graphically, and (b) capable of distinguishing the goods or services of one person from those of others. 


What are the benefits of trademark registration in India?

Registering a trademark in India gives the registered proprietor the exclusive right to use the trade mark in relation to goods or services for which is registered by using the ® symbol, the right to file a suit for infringement of trademarks, right to obtain injunctions and damages and seek civil and criminal reliefs against an infringer.


My trademark is not registered; can I still take legal action?

Yes, in case of unregistered trademarks, a passing off action may be taken against the infringing third party. Passing off is a common law remedy and the courts may grant injunctions, monetary relief for loss of business and destruction of infringing packaging labels etc. 


Is it mandatory to register your trademark in India?

No, it is not mandatory but it is strongly recommended to so. 


Can domain names be registered as trademarks in India?

Yes, domain names can be registered and protected as trademarks or service marks at the national and international levels, provided that the domain names are used to identify the source of the goods and services and are not confusingly similar to an existing domain name. Domain name acts as a trademark over the Internet, whereas a trademark serves the same purpose offline. While a trademark is a source identifier of your goods and services, a domain name is a pathfinder to a person or a business on the Internet. 


Who can apply for a trademark registration in India? 

Any person claiming to be a proprietor or owner of a mark for any goods or services which he is already using or intends to use the mark after the filing can apply for registration of a trade mark. 


I am not using my trademark in India; can I still file a trademark application?

Yes. Any person can file a trademark application for the registration of a mark for the purpose of using that trademark mark in future.


What is the procedure to register your trademark in India?

The procedure for registration of trademarks is contained in the Trade Mark Act, 1999 and Rules thereof. Generally it begins with a filing a trademark application as per the procedure specified by the Trade Mark Act, 1999. After the filing, an examination report by may issued by the Trademark Registry, to which a formal reply has to be filed within a period of one month from the receipt thereof. If the Registry is satisfied by the response, the application shall proceed to advertisement in the Trademarks Journal. At this time, the Trademark Registry is open to receiving oppositions by third parties to the registration of trademark. The time period to file an opposition is four (4) months (with applicable extensions) from the date the publication in the Trademark Journal. If no oppositions are received within the specified time, the application shall proceed to registration. 


What is the government fee for trademark registration in India?

The government fees to file a trademark application in India in the name of an individual / a start-up / SME is Rs. 4500 per class and in case the applicant is any other entity, it is Rs. 9000/- per class. 


Where do I file a trademark application in India?

You can file a trademark application at one of the five offices of the Trade Marks Registry located at Mumbai, Delhi, Kolkata, Chennai and Ahmadabad. However, the Trademark Registry also offers e-filing service. 


How to properly use ™ and ® to designate a trademark?

A TM symbol is used for an unregistered trademark and only a registered proprietor of a trademark can use ® symbol. Using the symbol TM symbol on a trademark means that one claims to be the owner of that trademark. While there is no prohibition to use the symbol TM symbol on a trademark in India by the owner, it is unlawful to use the ® symbol without registration. 


How long does the trademark registration process take?

It may take anywhere between one year to several years depending on the basis for filing and legal issues that may arise in the examination of the application.


What is the term of trademark registration in India?

A trademark in India is registered for a period of 10 years and it is renewable every 10 years.


Disclaimer: All information provided above is for educational purpose only and must not be construed as legal advice. The answer may change when applied to a particular case. 


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