What is the Trademark and What is the Trademark Registration Process in India?
A trademark is a brand name/ Logo/ Symbol/ Color/ Shape associated with a service or product of a person or institution. It is a unique mark through which consumers can identify a product or service. It distinguishes the product or service.
In India, trademarks are controlled under the Trademarks Act, 1999 (‘Act’) and Trade Marks Rules, 2017 (‘Rules’). When a trademark is registered under the Act, it is protected from infringement, meaning that any other party cannot use the registered trademark for their products or services without authorized consent.
Meaning of Trademark
According to Section 2(m) of the Act, a trademark is any design, symbol, heading, ticket, label, name, word, signature, letter, product shape, number, packaging, or any other combination of colors.
A trademark is a graphic symbol or emblem that is used to identify the manufacturer of products or goods. A word, signature, number, geometrical shape, monogram, a combination of letters and numbers, a combination of colors and a logo, or even a sound mark can be used as a symbol or logo.
Examples of a Registered Trademark
A few examples of registered trademarks are:
- Apple (Half eaten apple symbol with the leaf)
- Coca-Cola (Coca-cola bottle symbol)
- Nestle (Nestle word written in red color)
- Amazon (Amazon word in black color with a yellow arrow below)
- McDonald’s (Yellow’ M’ symbol)
- Nike (Swoosh symbol)
- Maggie (Maggie’s word written in yellow color inside the red color bubble)
- Adidas (Adidas word written with three parallel lines/stripes above the word)
Who Can Apply for Trademark Registration?
In India, trademark registration applications can be made by the trademark’s owner (proprietor). A trademark that a person creates and uses for their goods or services belongs to them. When a corporation’s goods or services are identified by a trademark, that company or entity will be considered the owner of the mark. So, anyone or any business can apply for trademark registration.
Procedure for Trademark Registration
The trademark registration involves the following procedure:
Trademark search
The owner (applicant) must first perform a trademark search on the website of the Controller General of Patents, Designs, and Trademarks before submitting the trademark registration application with the Registrar of Trademarks (the “Registrar”). Before applying for registration, doing a trademark search is crucial because the Registrar will reject the application if the proposed trademark is confusingly similar to or identical to another registered brand.
The applicant can apply for trademark registration if there are no similar registered trademarks. A trademark search is necessary to check whether the applicant’s goods are already registered or not. If any similar trademark appears in the search result, the applicant must modify their brand and apply for Trademark Registration.
Trademark application
Form TM-A has to be submitted for the trademark registration application. The applicant must fill out Form TM-A and submit it online or offline. It can be filed online by signing up on the IP India website. The trademark application should be submitted to the respective Trademark Registry of the applicant’s state.
Examination by the Registrar
Once the Registrar receives the application online or offline, the Registrar will scrutinize the same as per the Act and Rules. When the Registrar finds any defect in the application, he will inform the applicant. At this stage, the applicant must file an amended application with the Registrar.
Publication of the Trademark
When the Registrar is satisfied that the application complies with the Trademark Act and Rules, he shall publish the said trademark in the Trademark Journal. Any third party may oppose a trademark registration by filing a statement of protest with the Registrar within 120 days after its publication in the Trademark Journal.
In this stage, the Registrar will notice both parties under a particular procedure, seek answers and give its decision after the final hearing.
Issuance of Trademark Registration
At the end of the opposition process, either the trademark registration will be done, or the trademark application will be rejected as per the Registrar’s order. A trademark Registration Certificate will be issued after 120 days of the journal publication, in case there is no third-party opposition after the publication of the trademark.
Documents Required for Trademark Registration
The following documents are required to be given along with the trademark registration application:
- Soft copy of the trademark
- Business registration proof (in case the applicant is a company or entity)
- Class III digital signature certificate (in case of online filing of trademark registration)
- Date of first use of the trademark in India (in case of any prior usage of trademark or prior use claim)
- Power of attorney signed by the applicant
Rectification of a Trademark
Rectification of a trademark is rectifying or correcting an error or defect in the trademark description entered in the Register of Trademarks (‘Register’) after registration. Any person aggrieved by the wrong entry of a trademark can apply for its rectification to the Registrar or the Appellate Board.
Upon application for rectification of trademark by the person aggrieved, the Registrar or Appellate Board will make such an order for canceling or varying the registration of a trademark. The grounds on which the rectification application can be made are as follows:
- Error in the name, contact details, or address of the registered proprietor
- Error in the trademark details such as description, class, and design
- Omission or absence of any entry in the register
- Change in details of the proprietor such as name, address, and contact details
- Removal of the trademark that is not in use for five years
- Strikeout any goods, classes of services, or goods in respect of which a trademark is registered
- Any other grounds accepted and prescribed by the Registrar.
Cancellation of a Trademark
Cancellation of a trademark is taking it off or removing its entry from the register. Any person aggrieved by the trademark registration, a person interested in the trademark, or the Registrar can apply for cancellation of a trademark. A registered proprietor of the trademark can also file for the cancellation of its entry from the register.
The cancellation application is to be filed with the Registrar or the Respective High Court. After the application is submitted, the Registrar or High Court will hear the matter and pass an order. When the Registrar makes an order of cancellation, he/she will execute it by removing the trademark from the register.
When the High Court passes an order for cancellation, an intimation is sent to the Registrar to cancel the trademark from the register. The grounds on which a cancellation application can be filed are as follows:
- The trademark is registered without any genuine or bonafide intention to use it for the goods and services for which it is registered
- The registered trademark was not in bonafide use for five years from its registration, and five years have elapsed.
- The registered trademark is used in a manner that causes confusion or deception to the public.
- The trademark proprietor has misrepresented or has not disclosed any material fact regarding the trademark in its registration application, and such fact, if disclosed, would not justify such registration.
- Any change in the circumstances after trademark registration such that its registration will be invalidated
- When a condition is mentioned in the register, there is a failure or violation to observe such a condition.
Read Meanwhile:
Trademark infringement in India
Color Trademarks are protected under Indian trademark law.
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