INTRODUCTION

Definition of trademark has been provided under the Trademarks Act 1999. Section 2(1) (zb) of the Act defines Trademark as a mark which is can be represented graphically and is capable of distinguishing goods or services between two different persons.

Further it may involve shape of goods, its packaging and its combination of colours.

(i) In relation to Chapter XII of the Act except for the section 107 dealing with false representation of trademark as registered, a registered trade mark or a mark being used for goods or services, in indicating or in connection with the indication in the trade between the goods or services, depending on the case, the person having the right being the proprietor to use the mark.

(ii) In relation to other provisions related to the Act, a mark used or proposed to be used in par with the goods or services indicating or as to indicate a connection in the period of trade between the goods or services, depending on the case and person having the appropriate right, will be able to use the mark irrespective of identity of the person, and will include a certification trade mark or collective mark[1].  

Trademark can be defined as the distinctive sign which provides a distinction to the goods or services of an individual or a company from that of another competitor in the market. The objective of the trademark is that it indicates a connection in trade between the ongoing trade and commerce in the market and with the person associated who wants to get its trademark registered.  

Two types of trademark exist in India. One is registered trademark and the other is the unregistered trademark. Registered trademark obviously have some benefits over the unregistered trademark. One of the primary benefits is that an unregistered trademark does not possess the statutory right of infringement whereas the registered trademark possesses a statutory right of infringement.

REGISTERED TRADEMARK

In India, registration of trademark is not mandatory but it is always advisable to register the trademark. Once a trademark is registered it will be adhered with a symbol of (R) instead of the symbol of the trademark. As discussed earlier registered trademark will adhere to certain benefits over unregistered trademark. Registration in its primary role will secure the goodwill of the trader and provides for protection. Chapter IV of the Trademarks Act 1999 deals with the registration of the trademark.

Unregistered Trademark

An unregistered trademark does not get much legal protection in comparison with the registered trademark goods or services. It only have certain benefits under the common law system which includes passing off and unfair trade practise as a seeking profit method prohibited by law.

Registration provides legal protection to the rights of the registered owner.

PROCESS OF TRADEMARK REGISTRATION

1. Trademark Search

First step in the process of trademark registration is that of the trademark search. Trademark Search is defined as the public search on the trademarks database so as to find out whether the particular trademark is unique and is not identical or similar to the earlier trademark. Trademark search will help to disclose all sorts of trademark existing in the market which are either registered or unregistered. Further trademark search reveals even the applied trademark.

2. Select a Trademark Agent for further processes (optional)

In India for the purposes of registration of trademark, only the proprietors are allowed to file the trademark application. Further in case where proprietor is not present, the right holder can appoint an agent or attorney to file the application.

3. To file the trademark application

Application for trademark registration can either be filed in a single-class or a multi-class totally in dependence on goods and services the business is involved. Further the application requires registration to be supported with multiple documents with complete details of the trademark for which registration is sought. In case the applicant is claiming to be the official user of the trademark, then his/her affidavit will be attached with the same.  

4. Review by the trademark office

After filing of the trademark application, an examination report will be issued by the examiner after doing an in-depth examination of the given trademark application in par with the guidelines of the Trade Marks Act, 2016.

The examination may or may not disclose objections related with the trademark application. This report of the trademark authority is released within a period of 30 days of its registration application. In case if the report receives any sort of objections, the reply to the objections needs to be filed within 30 days of collection of the report.

5. Another Examination

After filing the reply of the trademark application, the examiner of the authority may institute a hearing in case where the examiner is not satisfied with the reply filed. After hearing the matter, the examiner has the full authority either to accept the application or reject if still any objection still remains.

6. Advertisement of the Trademark

Once the trademark application has been accepted, the particular trademark can go for further processes and get advertised or can get published in the Trade Marks Journal for 4 months. The publication and advertisement is done for the sole purpose to invite any objections pertaining to the trademark. If any objection got recorded then trademark registration will automatically fail.

7. Opposition

Any person from general public can file a notice against the registration of the advertised or published trademark. The notice needs to be filed within 4 months of the advertisement or the publication. Further in case where the advertised or published trademark is objected, then to get trademark registered a counter statement along with the evidence needs to be filed.

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8. Registration of a Trademark

After conquering the objection against the registration of a trademark, the application proceeds to final registration of the trademark. If the advertised or published trademark receives no objection against it, then it will automatically get registered with an auto-generated registration within 1 week time. Once a trademark gets registered, it remains valid for a period of 10 years which can be further renewed within a prescribed time period[2].  

CONCLUSION

In India trademark registration is not compulsory, but it is always advisable to register a trademark. Registered trademark possess a strong legal position and character over an unregistered trademark. Even filing a suit for infringement would eventually work for registered trademark and not for unregistered trademark. Trademarks in India vary from logo, label, word mark as well as device mark.

BY – MUNIS NASIR