Trademark Registration - Online Filing with Expert Help
Trademark Registration - Online
A trademark is a visual symbol, which may be a word, name, device, label or numerals used by a business to distinguish its goods or services from other similar products or services originating from a different business. A registered trademark is an intangible asset or intellectual property for a business and is used to protect the company's investment in the brand or symbol. A trademark is registrable if it is distinctive for the goods and services you provide. Proposed trademarks that are similar or identical to an existing registered trademark cannot be registered. Also, trademarks are not registrable if it is offensive, generic, deceptive, not distinctive, contains specially protected emblems, etc.,
Trademarks in India are registered by the Controller General of Patents Designs and Trademarks, Ministry of Commerce and Industry, Government of India. Trademarks are registered under the Trademark Act, 1999 and provide the trademark Tandoor Manufacturer owner with a right to sue for damages when infringements of trademarks occur. Once a trademark is registered, R symbol can be used, and the registration will be valid for ten years. Registered trademarks nearing expiry can be easily renewed by filing a trademark renewal application for a period of another ten years. online trademark registration in delhi
IndiaFilings is the market leader in trademark filing services in India, offering a variety of trademark services like trademark filing, trademark objection reply, trademark opposition, trademark renewal and patent registration. Get a free consultation for trademark registration by scheduling an appointment with an IndiaFilings Trademark Expert.
Trademark Registration Process
Trademark enrollment can be gotten for words, logo, numerals, motto, gadget and more in India. Trademark enrollment gives a lawful right of selectiveness for the utilization of the imprint to the proprietor of the trademark. Trademark enlistment is, in any case, a lengthy procedure including various advances. In this article, we spread the trademark enlistment process in India.
Trademark Search
Before starting the trademark enrollment process, the business visionary or a trademark proficient must lead a trademark search of the trademark database. A trademark search will give data about an indistinguishable or comparable trademark that has just been recorded with the trademark library. A trademark search can be led by visiting the Trademark Registrar Website. A guide "On the most proficient method to complete a trademark search" and "Deciphering Trademark Status" is accessible in the IndiaFilings Learning Center.
Trademark Filing
When a trademark search is finished, the application for trademark enrollment can be documented with the Trademark Registrar. The interest for registration of a trademark must be made in the recommended way and submitted alongside the expense for trademark enlistment. A trademark application can be documented at one of the five Trademark Registrar Office having locale over the State or on the web. Trademark applications can be submitted online by IndiaFilings.com or a trademark operator or legal advisor. tds refund
A trademark enlistment application must contain the accompanying data:
When the Trademark enrollment application is recorded with the Trademark Registrar, a trademark application allocation number is given inside a couple of working days. The trademark application can likewise then be followed online through the Online Trademark Search office. Regularly, on getting the trademark application portion number, the proprietor of the trademark can join the TM image by the logo.
Vienna Codification
The Vienna Classification or Vienna Codification, built up by the Vienna Agreement (1973), is a universal grouping of the emblematic components of imprints. When the trademark enrollment application is recorded, the Trademark Registrar will apply the Vienna Classification to the trademark dependent on the allegorical components of imprints. While this work is in advancement, the trademark application status generally reflects as "Sent for Vienna Codification".seis application
Trademark Examination
When Vienna Codification is finished, the trademark enlistment application will be designated to a Trademark Officer in the Trademark Registrar Office. The Trademark Officer would then survey the trademark application for the rightness and issue a trademark examination report. The Trademark Officer can acknowledge the trademark enlistment application and take into consideration trademark diary distribution or article the trademark enrollment application.
On the off chance that the Trademark Officer protests the trademark enlistment application, the trademark candidate has the option to show up before the Trademark Officer and address the complaints. On the off chance that the Trademark Officer is happy with the pastimes of the trademark candidate, the trademark would be taken into account trademark diary distribution. If the Trademark Officer isn't content with the justification, the trademark candidate has the privilege to request the choice of the Trademark Officer before the Intellectual Property Appellate Board.
Trademark Journal Publication
When the trademark enrollment application is acknowledged by the Trademark Registrar, the proposed trademark is distributed in the Trademark Journal. The trademark diary is distributed week after week and contains every one of the brands that have been acknowledged by the Trademark Registrar. When the trademark is distributed in the trademark diary, the open has a chance to protest the trademark enlistment, if they accept they will be harmed by that enrollment. On the off chance that there are no complaints recorded inside 90 days of that distribution, the imprint will ordinarily be enlisted inside 12 weeks – months.
On the off chance that the trademark enlistment application is contradicted by an outsider, the hearing will be called for by the Trademark Hearing Officer. Both the trademark candidate and the restricting party get the opportunity to show up at the gathering and give supports to enrollment or dismissal of the trademark application. Given the hearings and the proof introduced, the Trademark Hearing Officer will decide whether the trademark enrollment application ought to be acknowledged or dismissed. The choice of the Trademark Hearing Officer can likewise be tested by raising to the Intellectual Property Appellate Board. online trademark registration in delhi
Trademark Registration
Once there are no complaints or restrictions for the trademark enlistment application, the trademark original copy and trademark enrollment testament will be arranged and sent to the trademark application. When the trademark enrollment declaration is issued, the trademark is viewed as a registered trademark of the proprietor, giving the trademark proprietor elite utilisation of the imprint. The ® image would now be able to be set by the logo or trademark.
Documents required for Trademark Registration
Trademark registration is an essential mechanism through which a brand can be protected from unwanted use and infringement. Trademark registration process in India has been simplified by the Government and Entrepreneurs can now quickly obtain trademark registration for their brands within a few months. In this article, we look at the documents required for obtaining trademark registration in India.
Note: During the trademark application process, there is no requirement for submitting original documents. Scan copy of the original text would suffice the need.
Individuals & Sole Proprietorship
Any individual – Indian National or Foreign National can easily register a trademark in India. There is no requirement for forming a legal entity or business entity to register a trademark. Further, the documents required to register a trademark in the name of a proprietorship are the same as that of an individual as under:
Copy of the logo, preferably in black & white (Optional). In case the logo is not provided, the trademark application can be filed for the word.
Signed Form-48. Form-48 is an authorisation from the applicant to a Trademark Attorney for filing the trademark application on his/her behalf.
Identity Proof of the individual or Proprietor.
Address Proof of the individual or Proprietor.
Partnership / LLP / Company – Small Enterprise or Startup
The trademark registration fee varies from Rs.4500 to Rs.9500. For small enterprises, startups, proprietorships and individuals, the lower trademark fee of Rs.4500 is applicable. For all other entities, the trademark government fee applicable is Rs.9500. To be classified as a small enterprise, the applicant would have to provide Udyog Aadhar registration certificate. Further, in addition to the Udyog Aadhar registration, the following details would be required. msme registrations
Partnership / LLP / Company
In the case of a partnership firm or LLP, the entrepreneur would have to submit the following:
Copy of Logo (Optional)
Signed Form-48.
Udyog Aadhar Registration Certificate.
Incorporation Certificate or Partnership Deed.
Identity Proof of Signatory.
Address Proof of Signatory.
Other Applicants
All other applicants, including companies that do not have Udyog Aadhar registration, will have to submit the following documents to obtain trademark registration in India.
Copy of Logo (Optional)
Signed Form-48.
Incorporation Certificate or Partnership Deed.
Identity Proof of Signatory.
Address Proof of Signatory.
Trademark: TM, R and C Symbol
TM, R and C symbol are frequently used with a trademark or copyright to indicate certain aspects of intellectual property registration. The following are the common usages of these symbols:
™ – TM Symbol ©
The TM symbol is used when an application for a trademark is made with the trademark registry. The TM symbol is thus used to indicate the fact that a trademark application exists concerning the trademark and serves as a warning for infringers and counter-fitters.
SM Symbol
SM or Service Mark is a symbol used with trademark applications that are filed under class 35-45. Some applicants prefer to use TM symbol for trademark applications filed under category 1-34 and SM for the trademark registered under class 35-45. Using the TM symbol for all types or using an SM mark for trademark application under class 35-45 are both acceptable.
® – R Symbol
Once a trademark is registered, then the applicant can start using the ® symbol next to the trademark. The R symbol signifies that the trademark is registered and enjoys protection from infringement under the Trademark laws. Use of the ® symbol after filing a trademark application or without obtaining trademark registration is unlawful. best virtual cfo services
©- C Symbol
The © symbol stands for copyright and is a reserved right notice concerning any work that can be copyrighted like artwork, photography, videography, books, literary works, etc., The C symbol is used along with the copyright holder name and the year of first publication. In some countries, the proper use of the © logo is a must to claim copyright protection. However, the Berne Convention does require the method of the © symbol to claim copyright protection, and India is a member of the Berne Convention. Hence, thought the use of the © symbol is not a statutory requirement, puts infringers on notice.
Patent vs Copyright vs Trademark
Patent, copyright and trademark are all types of intellectual property rights that provide the creator with an exclusive right over the use of his/her creation of mind for a limited amount of time. Entrepreneurs who are seeking to register intellectual property must know the differences between the three and obtain the right registrations to protect his/her intellectual property. In this article, we look at the differences between patent, copyright and trademark in India.
What is Patent?
The patent is an exclusive right for an invention provided by the law for a limited time to the Patentee. By patenting a device, the patentee can control the making, using, selling or importing of the licensed product or process for producing that product without his/her consent. An invention relating either to a product or process that is new, involving an inventive step and capable of industrial application can be patented in India.
What is Copyright?
Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. Copyright does not protect brands or names, short word combinations, slogans, short phrases, methods, plots or factual information. Copyright also does not protect ideas or concepts. Therefore, copyright is mainly used to protect the creativity of writers, artists, designers, dramatists, musicians, architects and producers of sound recordings, cinematograph films and computer software.
What is a Trademark?
Trademark is a visual symbol which may be a word signature, name, device, label, numerals or combination of colours used by one Enterprise on goods or services or other articles of commerce to distinguish it from other similar products or services originating from a different undertaking. Hence, trademarks are mostly used to protect brand names, business names, slogans and more.
Difference between Patent, Copyright and Trademark
Patent, Copyright and Trademark serve different and distinct uses. The validity of their life and requirement for the application also vary as follows:
Main Use
Patent: Patents are mainly used to secure invention relating either to a product or process that is new, which is capable of having industrial application. Software and business ideas cannot be patented in India. Know more about software patent in India.
The following are items NOT patentable in India as per Section 3 of the Patent Act, 1970:
An invention which is frivolous or which claims anything contrary to well established natural laws;
A device the primary or intended use or commercial exploitation of which could be contrary to public order or morality or which causes serious prejudice to human, animal or plant life or health or the environment;
The mere discovery of a scientific principle or the formulation of an abstract theory or development of any living thing or non-living substance occurring in nature;
The small discovery of a new form of a known material which does not result in the enhancement of the perceived efficacy of that substance or the mere development of any new property or further use for a known content or of the small use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant.
A substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such material;
The small arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way; suit for recovery of money
Copyright: Copyright is mainly used to secure literary, dramatic, musical and artistic works including cinematograph films and sound recordings. Software or programme or tables and databases can be registered as a ‘literary work’ under the Copyright Act. However, to obtain a copyright for the software, the source code for the software must be submitted to the Copyright Office along with the application.
Trademark: Trademarks are mostly used by individuals, commercial and non-commercial entities to protect brand names, business names, slogans and more. An idea or concept or software cannot be trademarked. However, a unique name given to software or idea or notion can be trademarked.
Registrar
The review and acceptance of patent and trademark applications are controlled by the Controller General of Patents, Designs and Trademarks, Ministry of Commerce and Industry. The study and approval of Copyright applications are regulated by the Copyright Office, Department of Higher Education, Ministry of Human Resource Development.
Validity
Patent: Patent registrations have a validity of 20 years from the date of filing of a patent application, irrespective of whether it is filed with provisional or complete specification. In case the Patent Application is registered under the However, in case of international patent applications filed under PCT, the validity of the patent is for a term of 20 years beginning from the date of foreign filing.
Copyright: The general rule is that copyright lasts for 60 years. In the case of original literary, dramatic, musical and artistic works, the 60 years is counted from the year following the death of the author. In the case of cinematograph films, sound recordings, photographs, posthumous publications, anonymous and pseudonymous publications, works of government and practices of international organisations, the 60 years is counted from the date of publication.
Trademark: Trademark registrations are valid for ten years from the date of application. A registered trademark’s validity can be extended at the end of ten years by filing a trademark renewal application.
To register a trademark or copyright in India, visit IndiaFilings.com or talk to an IndiaFilings Business Expert. trust society registration
TRADEMARK CLASS SEARCH
Trademark application is made under 45 different classes as per the NICE classification for trademark. Each of the trademark class represents a distinct set of goods and services. While filing a trademark application, the quality of products and services to which the trademark pertains must be mentioned in the form. It is essential to choose the right class of logo while applying the wrong classification of a trademark could hamper the trademark registration process and diminish the legal protection for the mark under the Trademark Act.
A trademark application can be filed in more than one class if the activity of the business involves various goods or services falling under different trademark classifications. Further, even if a registered trademark exists under one category, another entity can file a trademark application for the same mark under a different class. Hence, filing of trademark application under one type does not provide complete exclusivity over the use of the target. Trademark only provides exclusivity for the use of the mark concerning the class of goods or services for which the trademark is registered. Use the trademark class finder tool to find the correct trademark class for your products or service from over 8000 goods and services.
Trademark
Trademark Class 1
Chemical used in industry, science, photography, agriculture, horticulture and forestry; unprocessed plastics; chemical substances for preserving foodstuffs;
Trademark Class 2
Paints; varnishes; preservatives against rust and deterioration of wood; colourants; metals in foil and powder form for painters; decorators; printers and artists;
Trademark Class 3
Bleaching preparations and substances for laundry use; cleaning; polishing; abrasive preparations; soaps; perfumery, essential oils, cosmetics, hair lotions;
Trademark Class 4
Industrial oils and greases; lubricants; dust absorbing, wetting and binding compositions; fuels (including motor spirit) and illuminants; candles, wicks;
Trademark Class 5
Pharmaceutical, veterinary and sanitary preparations; dietetic substances adapted for medical use, food for babies; disinfectants; fungicides, herbicides;
Trademark Class 6
Common metals and their alloys; metal building materials; small items of metal hardware; pipes and tubes of metal; goods of the metal not included in other classes;
Trademark Class 7
Machines and machine tools; machine coupling and transmission components; agricultural implements other than hand-operated; incubators for eggs;
Trademark Class 8
Hand tools and implements (hand-operated); cutlery; side arms; razors
Trademark Class 9
Scientific, electric, photographic, measuring, apparatus for recording, transmission or reproduction of sound or images; data processing equipment and computers;
Trademark Class 10
Surgical, medical, dental and veterinary apparatus and instruments, artificial limbs, eyes and teeth; orthopaedic articles; suture materials;
Trademark Class 11
Apparatus for lighting, heating, steam generating, cooking, refrigerating, drying ventilating, water supply and sanitary purposes
Trademark Class 12
Vehicles; apparatus for locomotion by land, air or water
Trademark Class 13
Firearms; ammunition and projectiles; explosives; fireworks
Trademark Class 14
Precious metals and their alloys and goods in precious metals; jewellery, precious stones; horological and other chronometric instruments
Trademark Class 15
Musical instruments
Trademark Class 16
Paper, cardboard and goods made from these materials; printed matter; stationery; brushes; typewriters and office requisites; plastic materials for packaging;
Trademark Class 17
Rubber, asbestos, mica and goods made from these materials; plastics in extruded form for use in manufacture; packing, stopping and insulating materials; flexible pipes;
Trademark Class 18
Leather and imitations of leather; animal skins, hides, trunks and travelling bags; umbrellas, parasols and walking sticks; whips, harness and saddlery;
Trademark Class 19
Building materials, (non-metallic), non-metallic rigid pipes for building; asphalt, pitch and bitumen; non-metallic transportable buildings; monuments, not of metal.
Trademark Class 20
Furniture, mirrors, picture frames; goods of wood, cork, reed, cane, wicker, horn, bone, ivory, whalebone, shell, amber, mother-of-pearl, meerschaum or of plastics
Trademark Class 21
Household or kitchen utensils and containers; combs and sponges; articles for cleaning purposes; unworked or semi-worked glass; glassware and earthenware;
Trademark Class 22
Ropes, string, nets, tents, awnings, tarpaulins, sails, sacks and bags, padding and stuffing materials(except rubber or plastics); raw fibrous textile materials
Trademark Class 23
Yarns and threads, for textile use
Trademark Class 24
Textiles and textile goods, not included in other classes; bed and table covers.
Trademark Class 25
Clothing, footwear, headgear
Trademark Class 26
Lace and embroidery, ribbons and braid; buttons, hooks and eyes, pins and needles; artificial flowers
Trademark Class 27
Carpets, rugs, mats and matting, linoleum and other materials for covering existing floors; wall hangings(non-textile)
Trademark Class 28
Games and playthings, gymnastic and sporting articles not included in other classes; decorations for Christmas trees
Trademark Class 29
Meat, fish, poultry and game; meat extracts; preserved, dried and cooked fruits and vegetables; jams, fruit sauces; eggs, milk and milk products; edible oils and fats
Trademark Class 30
Coffee, tea, cocoa, sugar, rice, tapioca, sago; bread, pastry and confectionery, ices; honey, treacle; yeast, baking powder; salt, mustard; vinegar; spices; ice
Trademark Class 31
Agricultural, horticultural and forestry products and grains; live animals; fresh fruits and vegetables; seeds, natural plants and flowers; foodstuffs for animals, malt
Trademark Class 32
Beers, mineral and aerated waters, and other non-alcoholic drinks; fruit drinks and fruit juices; syrups and other preparations for making beverages
Trademark Class 33
Alcoholic beverages(except beers)
Trademark Class 34
Tobacco, smokers' articles, matches
Trademark Class 35
Advertising, business management, business administration, office functions.
Trademark Class 36
Insurance, financial affairs; monetary affairs; real estate affairs.
Trademark Class 37
Building construction; repair; installation services.
Trademark Class 38
Telecommunications.
Trademark Class 39
Transport; packaging and storage of goods; travel arrangement.
Trademark Class 40
Treatment of materials.
Trademark Class 41
Education; providing of training; entertainment; sporting and cultural activities.
Trademark Class 42
Scientific, design and technical services; industrial analysis and research services; design and development of computer hardware and software.
Trademark Class 43
Services for providing food and drink; temporary accommodation.
Trademark Class 44
Medical services, veterinary services, hygienic and beauty care for human beings or animals; agriculture, horticulture and forestry services.
Trademark Class 45
Legal services; security services for the protection of property and individuals; personal and social services rendered by others to meet the needs of individuals.
Reasons for Trademark Application Rejection
A registered trademark can help the trademark owner prevent unauthorised use of the mark and create a valuable intangible asset for the company. However, the trademark registration process is long, typically taking anywhere between 12-18 months to know the final status of a filed trademark application. Since the trademark application process takes such a long time, many businesses begin building a brand around a mark while the trademark application is still pending. If the trademark application is finally approved and the score is registered, then the efforts spent on brand building is protected. However, if for some reason, the mark is not registered, then there is a likelihood for the brand to be under threat. Hence, we look at some of the top reasons for trademark application rejection, so these mistakes can be avoided while choosing a business name or trade name.
Generic Terms
Common used words or terms that are usually found in dictionaries cannot be trademarked. For example, a company cannot trademark the word “CHAIR” to sell chairs. Since the chair is a generic term for the product, one company cannot be given the right to use the generic name exclusively.
Descriptive Terms
Words that are commonly used to describe a product can also not be trademarked as it would be considered a descriptive term. For example, the mark COLD is likely to be rejected for marketing beverages as being descriptive. If a company is given the exclusive right to market its beverages using the term COLD, it would be unfair. Hence, such descriptive words for products or services cannot be trademarked.
Also, qualitative or praise terms such as RAPID, BEST, CLASSIC or INNOVATIVE cannot be trademark unless it is part of an otherwise distinctive mark.
Deceptive Trademarks
Deceptive trademarks are marks that may deceive or mislead consumers as to the nature, quality or geographical origin of the product. For instance, a trademark that resonates with cotton for a polyester product would be rejected as a deceptive trademark.
Offensive Terms
Trademarks that contain offensive terms or words that are contrary to public order or morality cannot be registered. Also, Logos and marks that are considered to be offensive or violate commonly-accepted norms of morality are generally not allowed to be registered as trademarks.
Marks Similar to an Existing Trademark
Many trademark applications are rejected because they could conflict with an existing registered trademark. Having two identical logos is contrary to the intellectual property rules and would confuse consumers. Hence, any trademark that is similar or could potentially be confused with an existing trademark would not be registered.
Official Marks
Trademarks that contain official names, flags, armorial bearings, official hallmarks and emblems of states and international organisations cannot be trademarked as they contain elements that are protected under National Regulations.
Choosing a Business Name
To improve the chances of choosing a business name that can be trademarked, follow the checklist below:
Ensure that the mark does not fall under any of the categories listed above.
Perform a trademark search to ensure there are no similar trademarks.
Perform a domain name search to ensure that the domain is available for the mark – to avoid any cybersquatting in the future.
Get a consultation from a trademark expert, if in doubt.
Top Reasons for Trademark Objection
An application for registration of a trademark can be objected by the Trademark Office for several reasons. In this article, we look at the top reason for trademark objection.
Trademark Objection
Once a trademark application is filed, a Trademark Examiner examines the application and searches earlier trademarks – which are identical or similar to the mark being considered. The findings of the Trademark Examiner are compiled as the trademark examination report.
Use of Incorrect Trademark Form
In case the trademark application is not made on the proper form, an objection as following is raised by the Trademark Examiner.
“The application is made on Form TM-1, for certification mark in respect of goods or services falling in a class, the form of the application should be corrected as TM-4 by filing a request on form TM-16.”
Corrective Action: The applicant can overcome this objection by requesting to correct the trademark application by filing a request on form TM -16.
Incorrect Trademark Applicant Name
The trademark applicant name must be entered correctly in an application, as suggested in this article. In case of false trademark applicant name, the Trademark Examiner would object as follows:
“The application appears to have been filed in the name of a partnership firm, names of all Partners of the firm should be brought on record by filing a request form TM-16.”
Corrective Action: The applicant can overcome an objection for incorrect trademark applicant name by requesting to correct trademark application by filing a request on form TM -16.
Failure to File Trademark Form TM-48
Whenever a trademark application is filed by a Trademark Attorney or Trademark Agent on behalf of the applicant, Trademark Form TM-48 must be attached. In case of Form TM-48 is not connected or incorrectly executed, the Trademark Examiner would raise an objection as following:
“The application has been submitted by a person other than the applicant, a duly stamped Power of Attorney in favour of a particular agent should be filed.”
Corrective Action: The applicant can overcome an objection for failure or incorrect Form TM-48 filing by requesting to correct trademark application by filing a request on form TM -16.
Incorrect Address on Trademark Application
In case a trademark application has not mentioned the principal place of business of the applicant, or if the applicant’s address for service in India is not specified, then an objection can be raised as under:
“The Principal Place of business of the applicant should be brought on record by filing a request on form TM-16” or “The applicant’s address for service in India should be brought on record by filing a request on form TM-16, since the applicant has no principal place of business in India.”
Corrective Action: The applicant can overcome an objection for incorrect address by requesting to correct trademark application by filing a request on form TM -16.transfer of shares from resident to non resident
Vague Specification of Goods or Services
In a trademark application, if the specification of goods or services is too ambiguous or encompasses a large variety of products and services in a class, then an objection can be raised by the Trademark Examiner as follows:
“The specification of goods/services mentioned in respect of class xx is very vague and wide. You should provide exact items in respect of which the trademark is sought to be registered, by filing a request on form TM-16.”
Corrective Action: The applicant can overcome an objection on the specification of goods or services by requesting to correct trademark application by filing a request on form TM -16.
Same or Similar Trademark Exists
In case, identical or similar earlier trademarks of different trademark owner are found on records in respect of the same or similar description of goods or services; then an objection is raised as follows:
“The trademark applied for registration is not registrable under Section 11(1) of the Trade Marks Act 1999 since identical or similar marks in respect of identical or similar description of goods or services are there on records and because of such identity or similarity of marks and goods or services there exists a likelihood of confusion on the part of the public.”
Corrective Action: The applicant can submit a reply to the trademark examination report by stating that trademarks cited as conflicting marks in the examination report are different than the applicant’s trademark, along with supporting evidence.
Trademark Lacks Distinctive Character
Trademarks which are not capable of distinguishing the goods/services of one person from those of another person are devoid of distinctive character and thus liable for objection under absolute grounds for refusal of trademarks. To overcome a trademark objection under complete grounds for refusal, the trademark applicant can submit proof to show that the mark has acquired a distinctive character by its prior use.
Trademark is Deceptive
An objection can be raised by the Trademark Examiner, if the mark has the potential for the deception of the public because of something inherent in the score itself or its use, like nature, quality or geographical origin of the goods or services. An objection as to deceptive trademark can be overcome if the applicant seeks to exclude products or services from the specification by filing Form TM-16.
Trademark Infringement in India
The number of trademarks registered in India is increasing day by day with the rising wave of awareness about intellectual property. Infringing on a registered trademark can have a lot of legal consequences and liability. Hence, it's crucial for Entrepreneurs to be aware of intellectual property regulations in India to avoid infringing on someone else trademark and to protect trademark belonging to him or her. fssai license consultant
Trademark Infringement
Section 29 of the Trade Marks Act describes “trademark infringement” as:
A registered trademark is infringed by a person who, not being a registered proprietor (owner of the trademark can also be a legal entity like LLP or Company or Trust, etc.,) or a person using by way of permitted use, uses in the course of trade, a mark which is identical with, or deceptively similar to, the trademark in relation to goods or services in respect of which the trademark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trademark.
A registered trademark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which because of:
its identity with the registered trademark and the similarity of the goods or services covered by such registered trademark; or
its similarity to the registered trademark and the identity or similarity of the products or services covered by such registered trademark; or
its similarity to the registered mark and the identity or similarity of the goods or services covered by such registered trademark; or
its identification with the registered trademark and the character of the products or services covered by such registered trademark is likely to confuse the part of the public, or which is expected to have an association with the registered trademark.
In any case, falling under clause (c) of sub-section 2 (above-mentioned section), the Court shall presume that it is likely to confuse the part of the public.
A registered trademark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of the brand, a mark which:
is identical with or similar to the registered trademark; and
is used about goods or services which are not similar to those for which the trademark is registered; and
the registered trademark has a reputation in India, and the use of the mark without due cause takes unfair advantage of or is detrimental to, the distinctive character or reputation of the registered trademark.
A registered trademark is infringed by a person if he uses such registered trademark, as his trade name or part of his trade name, or name of his business concern or part of the name, of his business concern dealing in goods or services in respect of which the trademark is registered.
For this section, a person uses a registered mark, if, in particular, he:
affixes it to goods or the packaging thereof;
offers or exposes products for sale, puts them on the market, or stocks them for those purposed under the registered trademark, or offers or supplies services under the registered trademark;
imports or exports goods under the mark; or
uses the registered trademark on business papers or in advertising.
A registered trademark is infringed by a person who applies such registered trademark to a material intended to be used for labelling or packaging goods, as a business paper, or for advertising products or services, provided such person, when he applied the mark, knew or had reason to believe that the application of the target was not duly authorised by the proprietor or a licensee.
A registered trademark is infringed by any advertising of that trademark if such advertising;
takes unfair advantage of and is contrary to honest practices in industrial or commercial matters; or
is detrimental to its distinctive character; or
is against the reputation of the trademark.
Where the distinctive elements of a registered trademark consist of or include words, the trademark may be infringed by the spoken use of those words as well as by their visual representation and reference in this section to the use of a mark shall be construed accordingly.
Remedy for Trademark Infringement
A Court may grant relief for trademark infringement or for passing off (e.g., counterfeit goods). Trademark infringement relief can be provided through an injunction, damages or an account of profits, together with or without any order for the delivery-up of the infringing labels and marks for destruction or erasure.isi registration
Section 135 of the Trade Marks Act mentions the following relief for trademark infringement:
The assistance which a Court may grant in any suit for infringement or for passing off referred to in Section 134 includes injunction (subject to the terms, if any, as the Court thinks fit) and at the option of the plaintiff, either damages or an account of profits, together with or without any order for the delivery up to the infringing labels and marks for destruction or erasure.
The order of injunction under sub-section (1) may include an ex parte injunction or any interlocutory order for any of the following matters, namely:
for the discovery of documents;
preserving of infringing goods, materials or other evidence which are related to the subject-matter of the suit;
restraining the defendant from disposing of or dealing with his assets in a manner which may adversely affect the plaintiff’s ability to recover damages, costs or other financial remedies which may be finally awarded to the plaintiff.
Notwithstanding anything contained in sub-section(1), the Court shall not grant relief by way of damages (other than nominal damages) or on account of profits in any case:
wherein a suit for infringement of a trademark, the breach complained of is about a certification trade mark or collective mark; or
where in the suit for infringement, the defendant satisfied the Court:
that at the time he commenced to use the trademark complained of in the lawsuit, he was unaware and had no reasonable ground for believing that the mark of the plaintiff was on the register or that the plaintiff was a registered user using by way of permitted use; and
that when he became aware of the existence and nature of the plaintiff’s right in the trademark, he immediately ceased to use the logo about the goods or services in respect of which it was registered; or
wherein suit for passing off, the defendant satisfied the Court:
that at the time he commenced to use the trademark complained of in the suit he was unaware and had no reasonable ground for believing that the mark of the plaintiff was in use; and
that when he became aware of the existence and nature of the plaintiff’s trademark, he forthwith ceased to use the trademark complained of. iso registration process
A trademark is a visual symbol, which may be a word, name, device, label or numerals used by a business to distinguish its goods or services from other similar products or services originating from a different business. A registered trademark is an intangible asset or intellectual property for a business and is used to protect the company's investment in the brand or symbol. A trademark is registrable if it is distinctive for the goods and services you provide. Proposed trademarks that are similar or identical to an existing registered trademark cannot be registered. Also, trademarks are not registrable if it is offensive, generic, deceptive, not distinctive, contains specially protected emblems, etc.,
Trademarks in India are registered by the Controller General of Patents Designs and Trademarks, Ministry of Commerce and Industry, Government of India. Trademarks are registered under the Trademark Act, 1999 and provide the trademark Tandoor Manufacturer owner with a right to sue for damages when infringements of trademarks occur. Once a trademark is registered, R symbol can be used, and the registration will be valid for ten years. Registered trademarks nearing expiry can be easily renewed by filing a trademark renewal application for a period of another ten years. online trademark registration in delhi
IndiaFilings is the market leader in trademark filing services in India, offering a variety of trademark services like trademark filing, trademark objection reply, trademark opposition, trademark renewal and patent registration. Get a free consultation for trademark registration by scheduling an appointment with an IndiaFilings Trademark Expert.
Trademark Registration Process
Trademark enrollment can be gotten for words, logo, numerals, motto, gadget and more in India. Trademark enrollment gives a lawful right of selectiveness for the utilization of the imprint to the proprietor of the trademark. Trademark enlistment is, in any case, a lengthy procedure including various advances. In this article, we spread the trademark enlistment process in India.
Trademark Search
Before starting the trademark enrollment process, the business visionary or a trademark proficient must lead a trademark search of the trademark database. A trademark search will give data about an indistinguishable or comparable trademark that has just been recorded with the trademark library. A trademark search can be led by visiting the Trademark Registrar Website. A guide "On the most proficient method to complete a trademark search" and "Deciphering Trademark Status" is accessible in the IndiaFilings Learning Center.
Trademark Filing
When a trademark search is finished, the application for trademark enrollment can be documented with the Trademark Registrar. The interest for registration of a trademark must be made in the recommended way and submitted alongside the expense for trademark enlistment. A trademark application can be documented at one of the five Trademark Registrar Office having locale over the State or on the web. Trademark applications can be submitted online by IndiaFilings.com or a trademark operator or legal advisor. tds refund
A trademark enlistment application must contain the accompanying data:
- Logo or the Trademark
- Name and address of the trademark proprietor
- Characterisation or Trademark Class
- Trademark utilised since the date.
- Depiction of the products or administrations
- Trademark Application Allotment
When the Trademark enrollment application is recorded with the Trademark Registrar, a trademark application allocation number is given inside a couple of working days. The trademark application can likewise then be followed online through the Online Trademark Search office. Regularly, on getting the trademark application portion number, the proprietor of the trademark can join the TM image by the logo.
Vienna Codification
The Vienna Classification or Vienna Codification, built up by the Vienna Agreement (1973), is a universal grouping of the emblematic components of imprints. When the trademark enrollment application is recorded, the Trademark Registrar will apply the Vienna Classification to the trademark dependent on the allegorical components of imprints. While this work is in advancement, the trademark application status generally reflects as "Sent for Vienna Codification".seis application
Trademark Examination
When Vienna Codification is finished, the trademark enlistment application will be designated to a Trademark Officer in the Trademark Registrar Office. The Trademark Officer would then survey the trademark application for the rightness and issue a trademark examination report. The Trademark Officer can acknowledge the trademark enlistment application and take into consideration trademark diary distribution or article the trademark enrollment application.
On the off chance that the Trademark Officer protests the trademark enlistment application, the trademark candidate has the option to show up before the Trademark Officer and address the complaints. On the off chance that the Trademark Officer is happy with the pastimes of the trademark candidate, the trademark would be taken into account trademark diary distribution. If the Trademark Officer isn't content with the justification, the trademark candidate has the privilege to request the choice of the Trademark Officer before the Intellectual Property Appellate Board.
Trademark Journal Publication
When the trademark enrollment application is acknowledged by the Trademark Registrar, the proposed trademark is distributed in the Trademark Journal. The trademark diary is distributed week after week and contains every one of the brands that have been acknowledged by the Trademark Registrar. When the trademark is distributed in the trademark diary, the open has a chance to protest the trademark enlistment, if they accept they will be harmed by that enrollment. On the off chance that there are no complaints recorded inside 90 days of that distribution, the imprint will ordinarily be enlisted inside 12 weeks – months.
On the off chance that the trademark enlistment application is contradicted by an outsider, the hearing will be called for by the Trademark Hearing Officer. Both the trademark candidate and the restricting party get the opportunity to show up at the gathering and give supports to enrollment or dismissal of the trademark application. Given the hearings and the proof introduced, the Trademark Hearing Officer will decide whether the trademark enrollment application ought to be acknowledged or dismissed. The choice of the Trademark Hearing Officer can likewise be tested by raising to the Intellectual Property Appellate Board. online trademark registration in delhi
Trademark Registration
Once there are no complaints or restrictions for the trademark enlistment application, the trademark original copy and trademark enrollment testament will be arranged and sent to the trademark application. When the trademark enrollment declaration is issued, the trademark is viewed as a registered trademark of the proprietor, giving the trademark proprietor elite utilisation of the imprint. The ® image would now be able to be set by the logo or trademark.
Documents required for Trademark Registration
Trademark registration is an essential mechanism through which a brand can be protected from unwanted use and infringement. Trademark registration process in India has been simplified by the Government and Entrepreneurs can now quickly obtain trademark registration for their brands within a few months. In this article, we look at the documents required for obtaining trademark registration in India.
Note: During the trademark application process, there is no requirement for submitting original documents. Scan copy of the original text would suffice the need.
Individuals & Sole Proprietorship
Any individual – Indian National or Foreign National can easily register a trademark in India. There is no requirement for forming a legal entity or business entity to register a trademark. Further, the documents required to register a trademark in the name of a proprietorship are the same as that of an individual as under:
Copy of the logo, preferably in black & white (Optional). In case the logo is not provided, the trademark application can be filed for the word.
Signed Form-48. Form-48 is an authorisation from the applicant to a Trademark Attorney for filing the trademark application on his/her behalf.
Identity Proof of the individual or Proprietor.
Address Proof of the individual or Proprietor.
Partnership / LLP / Company – Small Enterprise or Startup
The trademark registration fee varies from Rs.4500 to Rs.9500. For small enterprises, startups, proprietorships and individuals, the lower trademark fee of Rs.4500 is applicable. For all other entities, the trademark government fee applicable is Rs.9500. To be classified as a small enterprise, the applicant would have to provide Udyog Aadhar registration certificate. Further, in addition to the Udyog Aadhar registration, the following details would be required. msme registrations
Partnership / LLP / Company
In the case of a partnership firm or LLP, the entrepreneur would have to submit the following:
Copy of Logo (Optional)
Signed Form-48.
Udyog Aadhar Registration Certificate.
Incorporation Certificate or Partnership Deed.
Identity Proof of Signatory.
Address Proof of Signatory.
Other Applicants
All other applicants, including companies that do not have Udyog Aadhar registration, will have to submit the following documents to obtain trademark registration in India.
Copy of Logo (Optional)
Signed Form-48.
Incorporation Certificate or Partnership Deed.
Identity Proof of Signatory.
Address Proof of Signatory.
Trademark: TM, R and C Symbol
TM, R and C symbol are frequently used with a trademark or copyright to indicate certain aspects of intellectual property registration. The following are the common usages of these symbols:
™ – TM Symbol ©
The TM symbol is used when an application for a trademark is made with the trademark registry. The TM symbol is thus used to indicate the fact that a trademark application exists concerning the trademark and serves as a warning for infringers and counter-fitters.
SM Symbol
SM or Service Mark is a symbol used with trademark applications that are filed under class 35-45. Some applicants prefer to use TM symbol for trademark applications filed under category 1-34 and SM for the trademark registered under class 35-45. Using the TM symbol for all types or using an SM mark for trademark application under class 35-45 are both acceptable.
® – R Symbol
Once a trademark is registered, then the applicant can start using the ® symbol next to the trademark. The R symbol signifies that the trademark is registered and enjoys protection from infringement under the Trademark laws. Use of the ® symbol after filing a trademark application or without obtaining trademark registration is unlawful. best virtual cfo services
©- C Symbol
The © symbol stands for copyright and is a reserved right notice concerning any work that can be copyrighted like artwork, photography, videography, books, literary works, etc., The C symbol is used along with the copyright holder name and the year of first publication. In some countries, the proper use of the © logo is a must to claim copyright protection. However, the Berne Convention does require the method of the © symbol to claim copyright protection, and India is a member of the Berne Convention. Hence, thought the use of the © symbol is not a statutory requirement, puts infringers on notice.
Patent vs Copyright vs Trademark
Patent, copyright and trademark are all types of intellectual property rights that provide the creator with an exclusive right over the use of his/her creation of mind for a limited amount of time. Entrepreneurs who are seeking to register intellectual property must know the differences between the three and obtain the right registrations to protect his/her intellectual property. In this article, we look at the differences between patent, copyright and trademark in India.
What is Patent?
The patent is an exclusive right for an invention provided by the law for a limited time to the Patentee. By patenting a device, the patentee can control the making, using, selling or importing of the licensed product or process for producing that product without his/her consent. An invention relating either to a product or process that is new, involving an inventive step and capable of industrial application can be patented in India.
What is Copyright?
Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. Copyright does not protect brands or names, short word combinations, slogans, short phrases, methods, plots or factual information. Copyright also does not protect ideas or concepts. Therefore, copyright is mainly used to protect the creativity of writers, artists, designers, dramatists, musicians, architects and producers of sound recordings, cinematograph films and computer software.
What is a Trademark?
Trademark is a visual symbol which may be a word signature, name, device, label, numerals or combination of colours used by one Enterprise on goods or services or other articles of commerce to distinguish it from other similar products or services originating from a different undertaking. Hence, trademarks are mostly used to protect brand names, business names, slogans and more.
Difference between Patent, Copyright and Trademark
Patent, Copyright and Trademark serve different and distinct uses. The validity of their life and requirement for the application also vary as follows:
Main Use
Patent: Patents are mainly used to secure invention relating either to a product or process that is new, which is capable of having industrial application. Software and business ideas cannot be patented in India. Know more about software patent in India.
The following are items NOT patentable in India as per Section 3 of the Patent Act, 1970:
An invention which is frivolous or which claims anything contrary to well established natural laws;
A device the primary or intended use or commercial exploitation of which could be contrary to public order or morality or which causes serious prejudice to human, animal or plant life or health or the environment;
The mere discovery of a scientific principle or the formulation of an abstract theory or development of any living thing or non-living substance occurring in nature;
The small discovery of a new form of a known material which does not result in the enhancement of the perceived efficacy of that substance or the mere development of any new property or further use for a known content or of the small use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant.
A substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such material;
The small arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way; suit for recovery of money
- A method of agriculture or horticulture;
- Any process for the medicinal, surgical, curative, prophylactic diagnostic, therapeutic or other treatment of human beings or any means for a similar treatment of animals to render them free of disease or to increase their economic value or that of their products.
- Plants and animals in whole or any part thereof other than micro organisms but including seeds, varieties and species and inherently biological processes for production or propagation of plants and animals;
- A mathematical or business method or a computer programme per se or algorithms;
- A literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions;
- A mere scheme or rule or method of performing mental act or process of playing a game;
- A presentation of information;
- The topography of integrated circuits;
- An invention which in effect, is traditional knowledge or which is an aggregation or duplication of known properties of a traditionally known component or components.
Copyright: Copyright is mainly used to secure literary, dramatic, musical and artistic works including cinematograph films and sound recordings. Software or programme or tables and databases can be registered as a ‘literary work’ under the Copyright Act. However, to obtain a copyright for the software, the source code for the software must be submitted to the Copyright Office along with the application.
Trademark: Trademarks are mostly used by individuals, commercial and non-commercial entities to protect brand names, business names, slogans and more. An idea or concept or software cannot be trademarked. However, a unique name given to software or idea or notion can be trademarked.
Registrar
The review and acceptance of patent and trademark applications are controlled by the Controller General of Patents, Designs and Trademarks, Ministry of Commerce and Industry. The study and approval of Copyright applications are regulated by the Copyright Office, Department of Higher Education, Ministry of Human Resource Development.
Validity
Patent: Patent registrations have a validity of 20 years from the date of filing of a patent application, irrespective of whether it is filed with provisional or complete specification. In case the Patent Application is registered under the However, in case of international patent applications filed under PCT, the validity of the patent is for a term of 20 years beginning from the date of foreign filing.
Copyright: The general rule is that copyright lasts for 60 years. In the case of original literary, dramatic, musical and artistic works, the 60 years is counted from the year following the death of the author. In the case of cinematograph films, sound recordings, photographs, posthumous publications, anonymous and pseudonymous publications, works of government and practices of international organisations, the 60 years is counted from the date of publication.
Trademark: Trademark registrations are valid for ten years from the date of application. A registered trademark’s validity can be extended at the end of ten years by filing a trademark renewal application.
To register a trademark or copyright in India, visit IndiaFilings.com or talk to an IndiaFilings Business Expert. trust society registration
TRADEMARK CLASS SEARCH
- What is the trademark class for a pencil?
- Begin typing to check availability
- Trademark Class Finder
Trademark application is made under 45 different classes as per the NICE classification for trademark. Each of the trademark class represents a distinct set of goods and services. While filing a trademark application, the quality of products and services to which the trademark pertains must be mentioned in the form. It is essential to choose the right class of logo while applying the wrong classification of a trademark could hamper the trademark registration process and diminish the legal protection for the mark under the Trademark Act.
A trademark application can be filed in more than one class if the activity of the business involves various goods or services falling under different trademark classifications. Further, even if a registered trademark exists under one category, another entity can file a trademark application for the same mark under a different class. Hence, filing of trademark application under one type does not provide complete exclusivity over the use of the target. Trademark only provides exclusivity for the use of the mark concerning the class of goods or services for which the trademark is registered. Use the trademark class finder tool to find the correct trademark class for your products or service from over 8000 goods and services.
Trademark
Trademark Class 1
Chemical used in industry, science, photography, agriculture, horticulture and forestry; unprocessed plastics; chemical substances for preserving foodstuffs;
Trademark Class 2
Paints; varnishes; preservatives against rust and deterioration of wood; colourants; metals in foil and powder form for painters; decorators; printers and artists;
Trademark Class 3
Bleaching preparations and substances for laundry use; cleaning; polishing; abrasive preparations; soaps; perfumery, essential oils, cosmetics, hair lotions;
Trademark Class 4
Industrial oils and greases; lubricants; dust absorbing, wetting and binding compositions; fuels (including motor spirit) and illuminants; candles, wicks;
Trademark Class 5
Pharmaceutical, veterinary and sanitary preparations; dietetic substances adapted for medical use, food for babies; disinfectants; fungicides, herbicides;
Trademark Class 6
Common metals and their alloys; metal building materials; small items of metal hardware; pipes and tubes of metal; goods of the metal not included in other classes;
Trademark Class 7
Machines and machine tools; machine coupling and transmission components; agricultural implements other than hand-operated; incubators for eggs;
Trademark Class 8
Hand tools and implements (hand-operated); cutlery; side arms; razors
Trademark Class 9
Scientific, electric, photographic, measuring, apparatus for recording, transmission or reproduction of sound or images; data processing equipment and computers;
Trademark Class 10
Surgical, medical, dental and veterinary apparatus and instruments, artificial limbs, eyes and teeth; orthopaedic articles; suture materials;
Trademark Class 11
Apparatus for lighting, heating, steam generating, cooking, refrigerating, drying ventilating, water supply and sanitary purposes
Trademark Class 12
Vehicles; apparatus for locomotion by land, air or water
Trademark Class 13
Firearms; ammunition and projectiles; explosives; fireworks
Trademark Class 14
Precious metals and their alloys and goods in precious metals; jewellery, precious stones; horological and other chronometric instruments
Trademark Class 15
Musical instruments
Trademark Class 16
Paper, cardboard and goods made from these materials; printed matter; stationery; brushes; typewriters and office requisites; plastic materials for packaging;
Trademark Class 17
Rubber, asbestos, mica and goods made from these materials; plastics in extruded form for use in manufacture; packing, stopping and insulating materials; flexible pipes;
Trademark Class 18
Leather and imitations of leather; animal skins, hides, trunks and travelling bags; umbrellas, parasols and walking sticks; whips, harness and saddlery;
Trademark Class 19
Building materials, (non-metallic), non-metallic rigid pipes for building; asphalt, pitch and bitumen; non-metallic transportable buildings; monuments, not of metal.
Trademark Class 20
Furniture, mirrors, picture frames; goods of wood, cork, reed, cane, wicker, horn, bone, ivory, whalebone, shell, amber, mother-of-pearl, meerschaum or of plastics
Trademark Class 21
Household or kitchen utensils and containers; combs and sponges; articles for cleaning purposes; unworked or semi-worked glass; glassware and earthenware;
Trademark Class 22
Ropes, string, nets, tents, awnings, tarpaulins, sails, sacks and bags, padding and stuffing materials(except rubber or plastics); raw fibrous textile materials
Trademark Class 23
Yarns and threads, for textile use
Trademark Class 24
Textiles and textile goods, not included in other classes; bed and table covers.
Trademark Class 25
Clothing, footwear, headgear
Trademark Class 26
Lace and embroidery, ribbons and braid; buttons, hooks and eyes, pins and needles; artificial flowers
Trademark Class 27
Carpets, rugs, mats and matting, linoleum and other materials for covering existing floors; wall hangings(non-textile)
Trademark Class 28
Games and playthings, gymnastic and sporting articles not included in other classes; decorations for Christmas trees
Trademark Class 29
Meat, fish, poultry and game; meat extracts; preserved, dried and cooked fruits and vegetables; jams, fruit sauces; eggs, milk and milk products; edible oils and fats
Trademark Class 30
Coffee, tea, cocoa, sugar, rice, tapioca, sago; bread, pastry and confectionery, ices; honey, treacle; yeast, baking powder; salt, mustard; vinegar; spices; ice
Trademark Class 31
Agricultural, horticultural and forestry products and grains; live animals; fresh fruits and vegetables; seeds, natural plants and flowers; foodstuffs for animals, malt
Trademark Class 32
Beers, mineral and aerated waters, and other non-alcoholic drinks; fruit drinks and fruit juices; syrups and other preparations for making beverages
Trademark Class 33
Alcoholic beverages(except beers)
Trademark Class 34
Tobacco, smokers' articles, matches
Trademark Class 35
Advertising, business management, business administration, office functions.
Trademark Class 36
Insurance, financial affairs; monetary affairs; real estate affairs.
Trademark Class 37
Building construction; repair; installation services.
Trademark Class 38
Telecommunications.
Trademark Class 39
Transport; packaging and storage of goods; travel arrangement.
Trademark Class 40
Treatment of materials.
Trademark Class 41
Education; providing of training; entertainment; sporting and cultural activities.
Trademark Class 42
Scientific, design and technical services; industrial analysis and research services; design and development of computer hardware and software.
Trademark Class 43
Services for providing food and drink; temporary accommodation.
Trademark Class 44
Medical services, veterinary services, hygienic and beauty care for human beings or animals; agriculture, horticulture and forestry services.
Trademark Class 45
Legal services; security services for the protection of property and individuals; personal and social services rendered by others to meet the needs of individuals.
Reasons for Trademark Application Rejection
A registered trademark can help the trademark owner prevent unauthorised use of the mark and create a valuable intangible asset for the company. However, the trademark registration process is long, typically taking anywhere between 12-18 months to know the final status of a filed trademark application. Since the trademark application process takes such a long time, many businesses begin building a brand around a mark while the trademark application is still pending. If the trademark application is finally approved and the score is registered, then the efforts spent on brand building is protected. However, if for some reason, the mark is not registered, then there is a likelihood for the brand to be under threat. Hence, we look at some of the top reasons for trademark application rejection, so these mistakes can be avoided while choosing a business name or trade name.
Generic Terms
Common used words or terms that are usually found in dictionaries cannot be trademarked. For example, a company cannot trademark the word “CHAIR” to sell chairs. Since the chair is a generic term for the product, one company cannot be given the right to use the generic name exclusively.
Descriptive Terms
Words that are commonly used to describe a product can also not be trademarked as it would be considered a descriptive term. For example, the mark COLD is likely to be rejected for marketing beverages as being descriptive. If a company is given the exclusive right to market its beverages using the term COLD, it would be unfair. Hence, such descriptive words for products or services cannot be trademarked.
Also, qualitative or praise terms such as RAPID, BEST, CLASSIC or INNOVATIVE cannot be trademark unless it is part of an otherwise distinctive mark.
Deceptive Trademarks
Deceptive trademarks are marks that may deceive or mislead consumers as to the nature, quality or geographical origin of the product. For instance, a trademark that resonates with cotton for a polyester product would be rejected as a deceptive trademark.
Offensive Terms
Trademarks that contain offensive terms or words that are contrary to public order or morality cannot be registered. Also, Logos and marks that are considered to be offensive or violate commonly-accepted norms of morality are generally not allowed to be registered as trademarks.
Marks Similar to an Existing Trademark
Many trademark applications are rejected because they could conflict with an existing registered trademark. Having two identical logos is contrary to the intellectual property rules and would confuse consumers. Hence, any trademark that is similar or could potentially be confused with an existing trademark would not be registered.
Official Marks
Trademarks that contain official names, flags, armorial bearings, official hallmarks and emblems of states and international organisations cannot be trademarked as they contain elements that are protected under National Regulations.
Choosing a Business Name
To improve the chances of choosing a business name that can be trademarked, follow the checklist below:
Ensure that the mark does not fall under any of the categories listed above.
Perform a trademark search to ensure there are no similar trademarks.
Perform a domain name search to ensure that the domain is available for the mark – to avoid any cybersquatting in the future.
Get a consultation from a trademark expert, if in doubt.
Top Reasons for Trademark Objection
An application for registration of a trademark can be objected by the Trademark Office for several reasons. In this article, we look at the top reason for trademark objection.
Trademark Objection
Once a trademark application is filed, a Trademark Examiner examines the application and searches earlier trademarks – which are identical or similar to the mark being considered. The findings of the Trademark Examiner are compiled as the trademark examination report.
Use of Incorrect Trademark Form
In case the trademark application is not made on the proper form, an objection as following is raised by the Trademark Examiner.
“The application is made on Form TM-1, for certification mark in respect of goods or services falling in a class, the form of the application should be corrected as TM-4 by filing a request on form TM-16.”
Corrective Action: The applicant can overcome this objection by requesting to correct the trademark application by filing a request on form TM -16.
Incorrect Trademark Applicant Name
The trademark applicant name must be entered correctly in an application, as suggested in this article. In case of false trademark applicant name, the Trademark Examiner would object as follows:
“The application appears to have been filed in the name of a partnership firm, names of all Partners of the firm should be brought on record by filing a request form TM-16.”
Corrective Action: The applicant can overcome an objection for incorrect trademark applicant name by requesting to correct trademark application by filing a request on form TM -16.
Failure to File Trademark Form TM-48
Whenever a trademark application is filed by a Trademark Attorney or Trademark Agent on behalf of the applicant, Trademark Form TM-48 must be attached. In case of Form TM-48 is not connected or incorrectly executed, the Trademark Examiner would raise an objection as following:
“The application has been submitted by a person other than the applicant, a duly stamped Power of Attorney in favour of a particular agent should be filed.”
Corrective Action: The applicant can overcome an objection for failure or incorrect Form TM-48 filing by requesting to correct trademark application by filing a request on form TM -16.
Incorrect Address on Trademark Application
In case a trademark application has not mentioned the principal place of business of the applicant, or if the applicant’s address for service in India is not specified, then an objection can be raised as under:
“The Principal Place of business of the applicant should be brought on record by filing a request on form TM-16” or “The applicant’s address for service in India should be brought on record by filing a request on form TM-16, since the applicant has no principal place of business in India.”
Corrective Action: The applicant can overcome an objection for incorrect address by requesting to correct trademark application by filing a request on form TM -16.transfer of shares from resident to non resident
Vague Specification of Goods or Services
In a trademark application, if the specification of goods or services is too ambiguous or encompasses a large variety of products and services in a class, then an objection can be raised by the Trademark Examiner as follows:
“The specification of goods/services mentioned in respect of class xx is very vague and wide. You should provide exact items in respect of which the trademark is sought to be registered, by filing a request on form TM-16.”
Corrective Action: The applicant can overcome an objection on the specification of goods or services by requesting to correct trademark application by filing a request on form TM -16.
Same or Similar Trademark Exists
In case, identical or similar earlier trademarks of different trademark owner are found on records in respect of the same or similar description of goods or services; then an objection is raised as follows:
“The trademark applied for registration is not registrable under Section 11(1) of the Trade Marks Act 1999 since identical or similar marks in respect of identical or similar description of goods or services are there on records and because of such identity or similarity of marks and goods or services there exists a likelihood of confusion on the part of the public.”
Corrective Action: The applicant can submit a reply to the trademark examination report by stating that trademarks cited as conflicting marks in the examination report are different than the applicant’s trademark, along with supporting evidence.
Trademark Lacks Distinctive Character
Trademarks which are not capable of distinguishing the goods/services of one person from those of another person are devoid of distinctive character and thus liable for objection under absolute grounds for refusal of trademarks. To overcome a trademark objection under complete grounds for refusal, the trademark applicant can submit proof to show that the mark has acquired a distinctive character by its prior use.
Trademark is Deceptive
An objection can be raised by the Trademark Examiner, if the mark has the potential for the deception of the public because of something inherent in the score itself or its use, like nature, quality or geographical origin of the goods or services. An objection as to deceptive trademark can be overcome if the applicant seeks to exclude products or services from the specification by filing Form TM-16.
Trademark Infringement in India
The number of trademarks registered in India is increasing day by day with the rising wave of awareness about intellectual property. Infringing on a registered trademark can have a lot of legal consequences and liability. Hence, it's crucial for Entrepreneurs to be aware of intellectual property regulations in India to avoid infringing on someone else trademark and to protect trademark belonging to him or her. fssai license consultant
Trademark Infringement
Section 29 of the Trade Marks Act describes “trademark infringement” as:
A registered trademark is infringed by a person who, not being a registered proprietor (owner of the trademark can also be a legal entity like LLP or Company or Trust, etc.,) or a person using by way of permitted use, uses in the course of trade, a mark which is identical with, or deceptively similar to, the trademark in relation to goods or services in respect of which the trademark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trademark.
A registered trademark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which because of:
its identity with the registered trademark and the similarity of the goods or services covered by such registered trademark; or
its similarity to the registered trademark and the identity or similarity of the products or services covered by such registered trademark; or
its similarity to the registered mark and the identity or similarity of the goods or services covered by such registered trademark; or
its identification with the registered trademark and the character of the products or services covered by such registered trademark is likely to confuse the part of the public, or which is expected to have an association with the registered trademark.
In any case, falling under clause (c) of sub-section 2 (above-mentioned section), the Court shall presume that it is likely to confuse the part of the public.
A registered trademark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of the brand, a mark which:
is identical with or similar to the registered trademark; and
is used about goods or services which are not similar to those for which the trademark is registered; and
the registered trademark has a reputation in India, and the use of the mark without due cause takes unfair advantage of or is detrimental to, the distinctive character or reputation of the registered trademark.
A registered trademark is infringed by a person if he uses such registered trademark, as his trade name or part of his trade name, or name of his business concern or part of the name, of his business concern dealing in goods or services in respect of which the trademark is registered.
For this section, a person uses a registered mark, if, in particular, he:
affixes it to goods or the packaging thereof;
offers or exposes products for sale, puts them on the market, or stocks them for those purposed under the registered trademark, or offers or supplies services under the registered trademark;
imports or exports goods under the mark; or
uses the registered trademark on business papers or in advertising.
A registered trademark is infringed by a person who applies such registered trademark to a material intended to be used for labelling or packaging goods, as a business paper, or for advertising products or services, provided such person, when he applied the mark, knew or had reason to believe that the application of the target was not duly authorised by the proprietor or a licensee.
A registered trademark is infringed by any advertising of that trademark if such advertising;
takes unfair advantage of and is contrary to honest practices in industrial or commercial matters; or
is detrimental to its distinctive character; or
is against the reputation of the trademark.
Where the distinctive elements of a registered trademark consist of or include words, the trademark may be infringed by the spoken use of those words as well as by their visual representation and reference in this section to the use of a mark shall be construed accordingly.
Remedy for Trademark Infringement
A Court may grant relief for trademark infringement or for passing off (e.g., counterfeit goods). Trademark infringement relief can be provided through an injunction, damages or an account of profits, together with or without any order for the delivery-up of the infringing labels and marks for destruction or erasure.isi registration
Section 135 of the Trade Marks Act mentions the following relief for trademark infringement:
The assistance which a Court may grant in any suit for infringement or for passing off referred to in Section 134 includes injunction (subject to the terms, if any, as the Court thinks fit) and at the option of the plaintiff, either damages or an account of profits, together with or without any order for the delivery up to the infringing labels and marks for destruction or erasure.
The order of injunction under sub-section (1) may include an ex parte injunction or any interlocutory order for any of the following matters, namely:
for the discovery of documents;
preserving of infringing goods, materials or other evidence which are related to the subject-matter of the suit;
restraining the defendant from disposing of or dealing with his assets in a manner which may adversely affect the plaintiff’s ability to recover damages, costs or other financial remedies which may be finally awarded to the plaintiff.
Notwithstanding anything contained in sub-section(1), the Court shall not grant relief by way of damages (other than nominal damages) or on account of profits in any case:
wherein a suit for infringement of a trademark, the breach complained of is about a certification trade mark or collective mark; or
where in the suit for infringement, the defendant satisfied the Court:
that at the time he commenced to use the trademark complained of in the lawsuit, he was unaware and had no reasonable ground for believing that the mark of the plaintiff was on the register or that the plaintiff was a registered user using by way of permitted use; and
that when he became aware of the existence and nature of the plaintiff’s right in the trademark, he immediately ceased to use the logo about the goods or services in respect of which it was registered; or
wherein suit for passing off, the defendant satisfied the Court:
that at the time he commenced to use the trademark complained of in the suit he was unaware and had no reasonable ground for believing that the mark of the plaintiff was in use; and
that when he became aware of the existence and nature of the plaintiff’s trademark, he forthwith ceased to use the trademark complained of. iso registration process
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ReplyDeleteThanks for sharing such knoweledgable inofrmation if anyone want any help regarding trademark registraton then darcollp will assist you.Trademarks can be defined as special, distinctive signs that are used to distinguish products or services coming from a particular business. They might be patterns, images, signs, or even facial emotions. It is crucial since it sets your items apart from those of your rivals. It might be connected to your company or a particular item. Trademarks are protected from infringement since they are considered to be intellectual property. The Trademark Act of 1999 protects trademarks and their rights.
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