Can Foreigners apply for Trademark in India?

Introduction

A trademark is any logo, symbol, word, or combination of words, symbols, and numbers that distinguishes a product from the competition. A trademark is an essential intellectual property for a company because it prevents rivals from utilising identical names or logos.

Trademarks are divided into 45 classes, with each class including unique goods and services.

Who is qualified to file a trademark registration application?

To protect their product or service, any individual or organisation can file for a trademark. The application must include the applicant's trademark, name, and address, as well as the agent and Power of Attorney.

The entities listed below are eligible to register a trademark in India.

1. Joint proprietors:

A company's joint proprietors can register for a trademark together, and the application must include both of their names.

2. Limited-liability corporation (LLC):

A sole proprietorship firm is not a distinct legal body, and the individual who operates the business is entirely liable for its obligations. It is one of the simplest business types in terms of cost, degree of maintenance, and set up.

3. Establishment of a partnership

A partnership firm is created when two or more persons manage a business together as partners with the goal of obtaining profits that are equitably divided or as specified in their agreements, as defined under the Indian Partnership Act.

When applying for a trademark, a partnership business must include all of the partners' names in the application, with a maximum of ten.

4. LLP (Limited Liability Partnership): LLP stands for Limited Liability Partnership.

Because LLPs are formed under their own names, they can apply for trademark registration in their own names. The partners, on the other hand, cannot be candidates.

5. Indian business:

A trademark application must be filed in the name of any Indian firm, whether private limited, limited, or any other form. It should be emphasised that because every incorporated organisation has its own identity, a company director cannot be a trademark applicant.

6. Trust or society:

Trust or Society organisations are those founded with the goal of providing social benefit rather than profit.

7. A person or an individual:

Anyone can submit for trademark registration under their own name if they want to register their own distinctive phrases or symbols. However, they are not required to do business.

Under whom does one apply for a trademark?

In India, the Trade Marks Registry was created in 1940, and it now manages the Trade Marks Act, 1999, and its guidelines. It serves as a reference and information centre, as well as a facilitator in trademark disputes in the country.

The Trade Marks Act of 1999 aims to register trademarks sought for in the nation, offer greater trademark protection for products and services, and prohibit fraudulent use of trademarks.

Apart from the aforementioned duties, the Registry is also responsible for providing preliminary advise on registrability and causing a search to be conducted in order to grant a certificate under Section 45(1) of the Copyright Act, 1957.

After accession to the Madrid Protocol, a treaty under the Madrid System for international registration of trademarks, the Trade Marks Registry also functions as an office of origin in respect of applications made by Indian entrepreneurs for international registration of their trademarks and as an office of the designated Contracting party in respect of international registrations in which India has been designated for protection of the relevant trademarks.

Can a foreigner apply?

A trademark can be registered in numerous countries under the Madrid Protocol agreement. If more than one application to register in another country is submitted, the earliest application is subtracted six months.

In India, a foreign individual or organisation can apply for many services or products. India recognises the multi-class application scheme. In India, products and services are divided into 42 categories.

If his country is a signatory of the Madrid Protocol, the foreign national can file trademark applications in India. Foreign applicants can also seek to get their trademarks registered in India.

Foreign applicants can file an international trademark application through the country's trademark office under the Madrid Protocol. The Office of Origin is another name for the trademark office. The application is received by the Trademark Office, which subsequently sends it to the World Intellectual Property Organization (WIPO).

What is the Madrid Protocol, and how does it work?

A registered trademark can communicate to consumers its distinct positioning. However, a trademark registered in one nation can only protect the interests of the proprietor in that country.

If the owner wished to protect his trademark globally, he had to register it first in each country where he desired such protections. This is inconvenient since the number of applications and costs are multiplied by a factor of ten. The Madrid System was created to provide a "single-window solution" to all of these issues.

The Madrid Protocol is governed by the World Intellectual Property Organization (WIPO), which is situated in Geneva (International Bureau of the World Intellectual Property Organization).

By filing a single application, this technique permits trademarks to be registered in several countries. The World Intellectual Property Organization (WIPO), a United Nations specialised agency based in Geneva, Switzerland, is in charge of its administration.

The Madrid Protocol enables you to achieve and maintain global brand protection by establishing a user-friendly, efficient, and cost-effective set of processes.

Foreigners must meet the following conditions in order to register a trademark in India:

The major prerequisites for getting an international trademark in India are as follows:

• It is an extra benefit if the foreign applicant has a trademark application or registration in his or her native country. For the international application, it will be utilised as the fundamental mark.

• When a foreign firm wants to register a trademark in India, it must present an Incorporation Certificate.

Conclusion

A foreign applicant's trademark registration in India gives the same level of protection as an Indian applicant's trademark registration. India has designated several nations as convention countries, and they have been awarded same benefits as Indian citizens.

The applicant should affix the documentation showing the user ship date of the home country in an application by the foreign nation with the office of the Registrar of Trademarks since ownership in the trademark occurs with its first use.

Within six months of filing an application in their home country, a person or corporation from a convention nation can file for trademark registration in India.

written by:

Rupam Banerjee.