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What is a Trademark? Can your brand get Trademark Protection?

By Shruti Agrawal July 29, 2016


What is a Trademark?

A Trademark is a sign or combination of signs that distinguish goods or services of one person or enterprise from that of another. Although, registration of trademark is not compulsory in India, it is advisable to register a trademark as it creates a presumption with respect to ownership of the mark and in case of any dispute or infringement, it becomes easier to proceed against the other party and prove your case. Also, before registering your trademark in other countries, it is necessary to register the trademark in India.

A Trademark can be registered for a term of ten years and can be renewed for another ten years, indefinitely, on payment of renewal fees.

Symbol ‘®’ in India can only be used for a registered trademark granted by the Indian Patent and Trademark Office. However, there is no restriction on the use of symbol ‘TM’ as it only indicates proprietorship over a trademark.

What type of marks can be adopted as a Trademark?

A trademark can consist of any of the following marks or a combination of them:

  • Any name (including personal or surname of the applicant or predecessor in business or the signature of the person), which is not unusual for related trade to adopt as a mark.
  • Any invented word or arbitrary dictionary word or words, not being directly descriptive of the character or quality of goods/services i.e. a word mark.
  • Letter, Numerals or any combination thereof
  • Monograms
  • Shape of goods or their packing
  • A combination of colours or even a single colour in combination with a word or device
  • Marks constituting a 3- dimensional sign
  • Sound marks when represented in conventional notation or described in words by being graphically represented.

Thus, e.g. the trademark for LAW FARM can consist of its logo as well as the word mark i.e. the phrase “Law Farm: Cultivating Legal Solutions”.

Legal requirements of a Trademark

For any mark to be registered as a trademark, it must fulfill the legal requirements. According to section 9 of the act a trademark can be refused by the registry if it falls in any of the categories:

  • If it is devoid of distinctive character i.e. cannot distinguish the goods or services of one person from those of another person.
  • Descriptive in nature i.e. it exclusively consists of marks that describe the characteristic of the goods or services.
  • It exclusively consists of marks or indications which have become customary in the current language or in the bona fide and established practices of the trade.
  • If it is of such nature that causes confusion or can be deceptive for public.
  • It contains or comprises of any matter likely to hurt the religious susceptibilities of any class or section of the citizens of India;
  • It comprises or contains scandalous or obscene matter;
  • Its use is prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950.
  • The mark should not consist exclusively of the shape of goods which results from the nature of the goods themselves, or the shape of goods which is necessary to obtain a technical result or the shape which gives substantial value to the goods.
  • A word that is commonly used and is an accepted name of any single chemical element or any single chemical compound in respect of a chemical substance or preparation or which is declared by the World Health Organization and notified in the prescribed manner by the Registrar from time to time, as an international non-proprietary name or which is deceptively similar to such name.

Other pre-requisites of a Trademark

  • The mark should not be similar or identical to an existing mark in identical or similar goods and services covered by the mark.
  • If it is a word mark, or is a mark which in part contains a word, then that word must be easy to speak, spell and remember.
  • Mark should be capable of being represented graphically i.e. on the paper.
  • Invented or arbitrary words serve as best trademarks as they cannot be considered generic or descriptive.  
  • A generic term.

Types of Trademark

  • Trademark is a sign or group of signs that distinguishes the goods of an enterprise or person from those of others.
  • Service Mark is a sign or group of signs that distinguishes the service of an enterprise or a person from those of others.
  • Collective mark is a mark that belongs to a group or association of enterprises and not an individual. It distinguishes the goods or services of members of that group or association from those of other undertakings.
  • Certificate mark is a mark indicating that the goods or services in connection with which it is used are certified by the proprietor of the mark in respect of the origin, mode of manufacture of goods, quality or other characteristics. The certification mark may only be used in accordance with the defined standards. Example: ISO 9000.

Image Credits: http://www.corporatediary.co.in/blogs/post/How-to-Registered-Trademark-in-INDIA/

Author: Garima Nagpal

Tags: All About Trademarks , Types of Trademark , Legal requirements of a Trademark , type of marks that can be adopted as a Trademark , What is a Trademark , trademarks in india , indian law , brand , trademark , protection


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