Trademark

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Trademark

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A distinctive sign of some kind which is used by a business to identify itself and its products or services to consumers, and to set the business and its products or services apart from those of other businesses. A trademark is a type of intellectual property, and in particular, a type of industrial property. It is the subject of the WTO-TRIPS agreement. The period of protection for a trademark varies with respect to local legal constraints. Protection of such distinctive signs aims to stimulate creativity so as to ensure fair competition and to protect the customers by enabling them choices between various goods and services.

Trademark Protection

Well-Registered trademarks are identified by a symbol T.R.T his indicates that the company has a registered trademark. If TM is used then an application has been submitted but trademark is not yet granted. In India, A product may be protected through the given trademark for a period of 7 to10 years in India. It can generally be renewed indefinitely.

Types of Trademarks

Service mark
Service mark is a trademark used to identify services rendered by an organization from other. Titles, characters names are registered as service marks. Example: Airtel, Hutch, LIC and Star TV

Certification mark
Certification mark is used to identify the origin, material, quality and characteristics of goods and services rendered by a manufacturer/ dealer from his competitors. Such marks may also be used to access the worth of labour in manufacturing goods or services.
Example: Woolmark, Agmark and ISI

Collective mark
It is used to distinguish members of a cooperative organization, an association and other collective groups. Such marks prove to be an effective conservation process when intellectual assets cannot be protected under trademark or geographical indication. However such marks are not popular. Almost all legal provision for trademarks are applicable for such marks. Registration procedure for ordinary
marks in section 18 to 23 are supplemented by sections 63 and 64.

Example: Cooptex and Kadhi craft
Textile mark
Textile mark is a trademark used in textile goods
Example: Raymond
Trade name
A trademark or enterprise mark is used by a person or an entity to identify the business is referred as trade name. It is also known as trading style. Trade names and trademarks are synonymous Well-known trademark
A well-known trademark uses goods or services rendered using the name of a mark, which has gained popularity among substantial segment of the public. When such mark is used by others to promote the products/ services totally different from that of the genuine products, then the target customers may be deceived due to overwhelming popularity of brand name. An ordinary mark may acquire the status of well-known marks over a period owing to quality of products and services rendered. The term well known mark has been used in India ever since 1999 Act. It is effective since 15th September 2003.

Series trademark
Several trademarks may be registered as series as goods or services in the name of the proprietor. Such trademark should resemble in material and differ in respect of –

  • Goods or services in relation to which they are used or proposed to be used.
  • Quality, quantity, price and the name of the places
  • Other matter of non distinctive character which does not dies not substantially affect the identity of trademark.
  • Colour

Associate trademarks
There can be different proprietors using similar trademarks catering to prior rights and honest concurrent usage. However the validity of the trademarks is limited. The classes of goods and services may be different. A part of trademark may be registered separately in addition to registration of trademark as a whole. This permits exclusive owner ship of that portion of trademark. Only that portion which is registered separately must satisfy all conditions for trademark registration.

Shape trademark

Shape of trademark has facilitated promotion of products. Ever since the availability of graphic and other forms of animation technology a variety of shapes (logos, captions and labels). Such a graphical representation of the trademark capable of distinguishing the mark from the competing entities is called shape trademarks. It plays an important role in registration of the mark. The mark that has envisaged shape mark for the first time of shape used for goods.

Sound trademark
The signature tunes and familiar sounds used in broad casting and has gained popularity is called sound trademark Nearly 97000 distinct sounds are identified. Such sounds may be amplified so as to obtain desirable effect. Sound marks are presented graphically. It is subjected to discretion of the registrar.

Guidelines Regarding Registration of a work under the Trademark Act

Cases of phonetic similarity, no person, in similar and /or deceptively similar manner, can use the trademark, having phonetic resemblance, which means the change of letter, addition or deletion or placement of suffixes and prefixes do not in any manner change the character of a trademark.

Form and Signing of Application

  • An application to the Registrar for the registration of a trademark shall be signed by the applicant or his agent.
  • An application to register a trademark for a specification of goods or services included in any one class shall be made in Form TM-1.
  • An application to register a trademark under sub-section (2) of section 154 for a specification of goods or services included in any one class from a convention country shall be made in Form TM-2.
  • A single application for the registration of a trademark for different classes of goods or services from convention country under sub-section (2) of section 154 shall be made in Form TM-52.
  • An application to register a textile trademark (other than a collective mark or a certification trademark) consisting exclusively of numerals or letters or any combination thereof for a specification of goods or services included in one item of the Fifth Schedule under rule 145 shall be made in Form TM-22.
  • An application to register of a textile mark (other than a collective mark or a certification trademark) consisting exclusively of numerals or letters or any combination thereof for a specification of goods or services included in one item of the Fifth Schedule under rule 145 from a convention country under sub-section (2) of section 154 shall be made in Form TM-45.
  • (a) An application under section 63(1) to register a collective trademark for a specification goods or services in any one class shall be made in Form TM-3.(b) An application under section 63(1) to register a collective trademark for a specification of goods or services from a convention country under sub-section (2) of Section154 shall be made in Form TM-64.
  • (a) An application under section 71 to register a certification trademark for a specification of goods or services included in any one class shall be made in Form TM-4.(b) An application under section 71 to register a certification trademark for a specification of goods or services from a convention country under sub-section (2) of Section 154 shall be made in Form TM-65.
  • A single application for the registration of a trademark for different classes of goods or services shall be made in Form TM-51.
  • An application to register a series trademarks under section 15 for a specification of goods or services included in a class or for different classes shall be made in Form TM-8.
  • An application to register a series trademark under section 15 for a specification of goods or services included in a class or for different classes from a convention country under sub-section (2) of section 154 shall be made in Form TM-37.
  • An application for registration of a trademark for goods or services shall: -a) Explain with sufficient precision a description by words of the trademark, if necessary to determine the right of the applicant;b) Be able to depict the graphical representation of the trademark;c) Not be acted upon which consists of a three dimensional mark unless it contains a statement to that effect;d) Not be acted upon which consists of a colour combination is claimed as an element of a trademark unless it contains a statement to that effect and specifies the colours.
  • An amendment to divide an application under proviso to section 22 shall be made in Form TM-53.
  • An application shall be in respect of one trademark only for as many class or classes of goods or services as may be made.
  • In the case of an application for registration in respect of all the goods or services included in a class or of a large variety of goods or services in a class, the Registrar may refuse to accept the application unless he is satisfied that the specification is justified by the use of the mark which the applicant has made or intends to make if and when it is registered.
  • The specification of goods or services shall not ordinarily exceed five hundred characters. An excess space fee as prescribed in the First Schedule is payable with each application in Form TM-61.
  • (a) A single application for the registration of a collective mark in different classes shall be made in Form TM-66(b) A single application for the registration of a collective mark in different classes from a convention country shall be made in Form TM-67.
  • (a) A single application for the registration of certification trademark in different classes shall be made in Form TM-68.(b) A single application for the registration of a certification trademark in different classes from a convention country shall be made in Form TM-69.
  • Where an applicant files a single application for more classes than one, and the Registrar determines that the goods or services applied for fall in class or classes in addition to those applied for, the applicant may restrict the specification of goods or services to the class applied for or amend the application to add additional class or classes on payment of the appropriate class fee and the divisional fee. The new class created through a division retains the benefit of the original filing date or in the case of an application from a convention country the convention application date under sub-section (2) of Section 154 provided the claim was otherwise properly asserted in the initial application.