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1. Trademarking a Brand Name
By securing a trademark for your company’s name, you safeguard the brand, its reputation, and your creative ideas—elements that you have certainly poured significant effort and dedication into developing. Although the trademark registration process may require time across various aspects, the worst outcome would be failing to protect your brand and risking an infringement lawsuit from a larger corporation.
The process of brand trademark registration in India is now possible and convenient through the trademark registration portal (IP India Portal) and you can trademark any one of the below things or even a combination of the following:
- Letter
- Word
- Number
- Phrase
- Graphics
- Logo
- Sound Mark
- Smell or a mix of colors
2. Trademark Registry
The trademark registry was founded in 1940, followed by the enactment of the Trademark Act in 1999. At present, the trademark registry serves as the operational or functional entity of the Act. In its role as a functioning body, the trademark registry enforces all the rules and regulations pertaining to trademark law in India.
The main office of the trademark registry is located in Mumbai, with additional branch offices in Delhi, Ahmedabad, Chennai, and Kolkata. A trademark is registered in accordance with the Trademark Act of 1999 and subsequently recorded in the Trademark Registry. During this procedure, the registry verifies that the mark being registered complies with all the requirements set forth by the Act before it is officially registered.
3. Who Can Apply For a Trademark?
The owner of the trademark is eligible to submit an application for trademark registration. In the Trademark Registration form, the individual listed as the applicant will be recognized as the trademark owner upon successful registration. Any person, corporation, or LLP can serve as an applicant and is permitted to file the application for the registration of the specific trademark.
4. How to Register a Trademark?
The registration of a trademark is carried out by the Registrar Office of Trade Marks. When you intend to register a trademark, there are several steps that need to be followed.
Choosing a trademark:
Ensure you select a unique and recognizable mark that will symbolize your business. Another crucial aspect is determining the class to which you belong. At present, there are 45 classes of goods and services available for trademark registration. Classes 1-34 pertain to goods, while classes 35-45 are designated for services.
Mark search:
After selecting your trademark, it is recommended to perform a trademark search to determine if your selected mark resembles any existing registered marks. You can accomplish this independently by visiting the online portal of the Controller General of Patents, Designs and Trademarks. On this site, there is an option available for conducting a public search. Once you select this option, you will need to specify your class and search the online database.
Alternatively, you may opt for legal services, which, while incurring a fee, provide a more secure approach. In the long run, legal services may prove to be more economical if your trademark faces objections. They will not only conduct the search but also assist you throughout the entire process.
Filing application:
You have the option to submit a single application for various classes or series trademarks, as well as for collective trademarks. To do this, you need to complete form TM-A. This form enables you to register a trademark across multiple classes. The submission of this form incurs two distinct cost categories:
Rupees 9,000 or Rupees 10,000
If you do not belong to a start-up, small business, or an individual, you will be categorized under this bracket. The fee for e-filing the form is 9,000 rupees, or 10,000 rupees if you choose to file the form in person at the Office of Trade Marks.
Rupees 4,500 or Rupees 5,000
If you are an individual, a small business, or a start-up, you belong to this category. The fee for e-filing the form is Rupees 4,500, while the charge for physical filing is Rupees 5,000.
When completing the form, ensure that you do not make any errors, as this could result in delays or even the rejection of your application. It is essential to provide all required information and include a trademark image with dimensions of 9 by 5 cms. You may also need to submit five copies of the same. The complete file must be submitted along with two duplicates when filing.
You have the option to file online, do it yourself, or hire an agent, depending on what is most convenient for you. If you file online, you will receive immediate confirmation; however, if you file physically, it may take 15-20 days. Cleartax experts are available to assist you with the trademark application process and make it easier for you.
5. Online Trademark Registration Procedure
Step 1: Surf internet for a brand name that is “wacky-enough”
This is an effective and concise method for newcomers to find a catchy, trendy, and engaging brand name.
Choosing a brand name that is quirky and unconventional is certainly a smart decision, as many generic names are likely already taken.
Additionally, narrowing down to a specific name necessitates a brief research process to confirm that you are not selecting a brand name that is already in use.
The most advantageous aspect is that you can create or combine words with common terms to develop a distinctive brand name for yourself.
Step 2: Preparing a trademark application
The following supporting documents together with the application have to be submitted for online trademark registration:-
- Business Registration Proof: On the basis of your registered business (for eg: sole proprietorship and so on), an identity proof of the company’s directors and an address proof have to be submitted. In case of sole proprietorship business, ID proof of the proprietor viz. PAN card or Aadhaar card could be submitted. Whereas, in the case of companies, the address proof of the company needs to be submitted.
- Soft copy of the trademark.
- The proof of claim (which is applicable) of the proposed mark can be used in another country.
- Power of attorney to be signed by the applicant.
Step 3: Filing the application of brand name registration
Manual Filing and e-Filing represent two distinct methods for submitting a trademark registration application (form TM-A). If you opt for ‘manual filing’, you must personally deliver your application for registration to the Registrar Office of Trade Marks located in major Indian cities such as Delhi, Mumbai, Kolkata, Ahmedabad, and Chennai. Following this, you will need to wait for a minimum of 15 to 20 days to obtain the acknowledgment receipt.
Conversely, with the e-filing system, you will receive your acknowledgment receipt immediately through the government website. Once you have received your acknowledgment, you are permitted to use the TradeMark (TM) symbol alongside your brand name!
Step 4: Examining the process of the brand name application
After the application has been submitted, the Registrar of Trademark will verify if you have adhered to specific requirements and that your brand name aligns with current legislation. Additionally, it is essential that your brand name does not resemble or match any existing or pending trademarks for registration. This is why we encouraged you to select a unique brand name!
Step 5: Publication of your brand in the Indian Trade Mark Journals
Following the examination process, the Registrar of Trademark will announce your brand name in the Indian trademark journal. This step is undoubtedly the most crucial aspect of trademark registration, and there must be no opposition within four months from the publication date. If there is no opposition, the Registrar of Trademark will move forward with the issuance of the Trademark Registration Certificate.
Step 6: Trademark Opposition
If a third party raises any objections within 4 months of the trademark’s publication in the trademarks journal, the Registrar of Trademarks will provide you with a copy of the opposition notice. You are required to respond to this notice by submitting a counter-statement within 2 months of receiving the opposition notice. Failing to file the counter-statement within this 2-month period will result in your trademark application being deemed abandoned and subsequently rejected.
On the other hand, if no opposition is filed within the 4-month timeframe, this process will not be applicable to you, and your brand name will continue to move forward towards the approval for the issuance of the Trademark Registration Certificate.
Step 7: Hearing on Trademark Opposition
This step does not pertain to you if there is no opposition to the trademark.
However, if a third party opposes your trademark and you submit your counter-statement within two months, the Registrar of Trademarks will forward your counter-statement to the opposing party.
Both you and the opposing party must provide evidence to support your respective cases. The Registrar will allow both parties to present their arguments after the evidence has been submitted. Following the hearing and review of the evidence, the Registrar will issue a decision to either accept or reject the trademark application. If the Registrar accepts your application, they will proceed with the registration process.
Step 8: The trademark registration certificate issuance
The Registrar will accept your trademark application if there’s no opposition being raised within the stipulated period of 4 months or on acceptance of your trademark application after trademark opposition hearing. Wow! And this will be the happiest moment for you as the Registrar issues the Registration Certificate with the Trademark Registry seal.
Right from the moment you have been issued with your certificate, you can use the registered trademark symbol (®) beside your brand name.
6. Status of application
After you receive confirmation of your application filing, you will be assigned an allotment number. You can monitor the status of your application online using this allotment number. Please note that this process may take time; if there are no issues with the filing, you will find out whether your application has been approved or rejected within 18 to 24 months. However, if there are complications, it may take longer.
Applications are prioritized based on their filing dates, so the longer the process takes, the higher the priority your application will receive. Another benefit of submitting your application is that even if it has not yet been approved, you are allowed to use the TM symbol next to your mark once you have obtained your allotment number.
7. Registration
Once your trademark is approved the registry will give you a Trademark Registration Certificate. This will officially confirm that your trademark has been registered and is now protected. The registration will be valid for 10 years from the date of the filing of the application. Trademark registration can be renewed after this period. Renewal can be done indefinitely.
Please Note: A registered trademark is only protected and valid in India and does not warrant any international status or protection.
8. Top 8 Things You Need to Know Regarding Trademark Registration
A trademark can be one of the most valuable assets for your company.
It serves as a means of identification and plays a crucial role in shaping the public image of the company.
A trademark can be a visual symbol – such as a word, name, number, label, logo, or a combination of colors, etc.
It signifies uniqueness and assists customers in recognizing a specific brand or company.
The Trademark Act of 1999 regulates the laws concerning trademarks and their registration.
In India, trademarks are registered by the Controller General of Patents, Designs and Trademarks, which is part of the Office of the Registrar of Trademarks under the Ministry of Industry and Commerce, Government of India.
Here are the top 8 essential points you should know about trademark registration:
1. Visual Representation
The types of trademarks you can get registered are quite varied. Here are a few types:
- Word Marks
- Service Marks
- Logos and Symbols
- Shape of Goods
- Series Marks
- Collective Trademarks
- Certification Mark
- Geographical Indicators
- Pattern Marks
- Sound Marks
- Colour Marks
- Three Dimensional Marks
2. Intangible Asset
Take into account that your business establishes a respected name and evolves into a successful brand. A trademark, as a form of intellectual property, offers numerous advantages to the organization. After a trademark is registered, it transforms into an intangible asset that can be sold, franchised, commercially contracted, and distributed.
3. Protection Against Infringement and Other Legal Protection
The holder of a registered trademark is entitled to enforce their legal rights if there is any infringement concerning the owner’s logo, brand, or a slogan that is actively trademarked. The owner has the authority to take legal action against any third party that utilizes the trademark without obtaining prior consent from the trademark owner.
4. Trademark Search
A trademark search is typically performed to determine whether a specific trademark is already in use. This search can be executed via the Indian Trademark Registry database maintained by the government or through a website of a third-party service provider.
5. Class Selection
The products and services offered are categorized into 45 distinct sectors. Each sector is known as a class. Every logo or brand name must be registered under the correct class during the application process. Among the 45 classes, 34 are designated for products, while the other 11 are intended for services.
6. Voluntary, not Compulsory Registration
The process of trademark registration is voluntary. Nevertheless, once a trademark is registered, it serves as definitive proof of ownership for the individual who undertook the registration. Consequently, all legal rulings will favor the party that has registered the trademark.
7. Validity
A registered trademark remains valid for a maximum of 10 years before requiring renewal. However, the renewal process can only be started within one year prior to the trademark’s expiration. If this is not done, the trademark will be canceled. Even after cancellation, the trademark can be reinstated through a process known as trademark restoration, provided it is done in the required format.
8. Trademark Symbols
Trade Mark (TM) and Service Mark (SM)
This indicates that the trademark is not yet registered, but an application for registration is currently in process. It serves as a warning to third parties to avoid infringing on the trademark. There is no particular legal significance at this stage since the application has not been approved by the relevant authorities.
R (®) Symbol
Upon receiving approval for your trademark application, you, as the esteemed owner of the newly registered trademark, are authorized to use the ® symbol alongside it. This indicates that the trademark is officially registered, and any infringement by a third party will be subject to legal penalties.
While it is not compulsory to use the ® symbol, doing so offers protection to the trademark owner. In the event that someone copies the product, the owner can sue the infringing party for damages and recover any lost profits. This is due to the requirement that the court must be shown that the infringer was aware of the trademark’s registered status and still chose to use it without obtaining prior consent.
C (©) Symbol
The © symbol is generally used to signify copyright that the owner has over some creative work. This includes:
- Artwork- Photography
- Videography
- Literary Works
- Software
The © symbol is valid for a lifetime. The symbol is used with the copyright holder’s name and the year of the first publication in the country where the work was copyrighted. All in all, there is a lot that one must be aware of when it comes to trademarks and their registration. The process, in itself, is quite tricky, which is why the applicant must carry out proper research concerning the same. Therefore, registering your trademark has benefits aplenty provided it is done with due care.
9. Benefits of Trademark Registration in India
A trademark is a distinctive symbol or sign, which can be a label, numeral, or a combination of colors, used to identify your goods or services. You can secure a trademark registration under the Trademarks Act of 1999.
A trademark allows you and others to differentiate your products and services from those of your competitors. However, it is important to remember that geographical names, generic names, common trade terms, and standard abbreviations cannot be registered as trademarks.
In addition to being distinctive, a trademark should be user-friendly, enhance the marketability of your products, and foster brand recognition. Trademark registration offers numerous advantages and benefits to the owner:
Legal protection: Upon registering a trademark, it is classified as intellectual property, thus providing protection against infringement. Trademark registration grants an exclusive right to utilize the trademark concerning the specific “Class” of goods or services it denotes. After submitting your trademark application, you may use the symbol “TM” with your products. The symbol “R” can only be used once you have received your trademark registration. Additionally, the ® symbol may only be applied to the goods and/or services specified in the registration certificate. In instances of unauthorized use of a registered trademark, you have the right to pursue legal action for infringement in the relevant courts of the country.
Product differentiation:
Trademark registrations are specific to the goods or services they denote.
A trademark allows your product to stand out from those of your competitors. Furthermore, as trademark registration is applicable to the entire category of goods or services it represents, it aids in clearly distinguishing your products. Customers can uniquely recognize products that bear different trademarks, thereby establishing a customer base for your product.
Brand recognition: Customers link a product’s performance, quality, features, and similar attributes to the company that produces it. They typically recognize the product by its logo, which serves as a registered trademark. Registering a trademark enhances brand visibility for your products and services. Additionally, it fosters goodwill linked to the brand. Consequently, your brand gains recognition and accumulates market value over time. Brand recognition attracts new customers while also keeping existing loyal customers.
Creation of an asset: Registering a trademark establishes an asset for a business. A trademark is acknowledged as an intangible asset for both accounting and income tax considerations. Trademarks are a form of intellectual property and hold value linked to the products they signify. They can be sold, franchised, assigned, or otherwise commercially utilized. The value or expense related to trademarks can be recorded in the financial statements, allowing for depreciation deductions and income recognition from them.
Business valuation and goodwill: Trademarks registered and associated with your products enhance your overall business value, goodwill and net worth in the industry. Your trademark communicates your quality assurance, distinct features of your products and your organisation’s mission. Trademarks contribute to the growth of your business. They help retain loyal customers and protect the goodwill of your business.
Trademark recognition: Trademark registered in India is valid for 10 years from the date of filing of an application. However, the trademark can be further renewed. In a case where you want to use your trademark outside India or expand your business outside India, you need approval or trademark registration in the respective countries. In such cases, your trademark registration and business in India acts as a base to obtain registrations outside India.
Business expansion: A trademark establishes a connection between the customers and the products of an enterprise. With efficient or unique products, you can create a customer base. Your trademark helps you in retaining and expanding the customer base. Registration of your trademark confers exclusive rights of use for 10 years and protects your business revenues. Business enterprises can leverage the benefits of a customer base by introsducing new products and expanding their business.
