What is Trademark?
A trademark can be any word, phrase, symbol, design or combination of these that identifies your goods or services. It’s how customers recognize you in the market and differentiate you from your competitors.
The word “Trademark” can refer to both trademarks and service marks. A trademark is used for goods, while a “Service mark” is used for services.
Examples: – The “M” of McDonalds, coca cola logo, Domino’s pizza logo etc.
Types of Trademarks.
Standard Character Format
Most trademarks are registered in a standard character format. This format protects words, letters, numbers or combinations thereof without any restriction to a specific font style, size, color or design. Basically, you get protection for the words themselves, regardless of how they are displayed, as with a registered word Coca-Cola®.
It is interesting to note that generic words cannot be registered as trademark in standard character format. A trademark in standard character format must be unique and not a generic word from a dictionary. Example: – “water”, “shoes”, “card”, “shampoo”.
Special Form Format
Trademarks registered in a special format protect trademarks that are stylized, have patterns or logos, or are colorful. Trademark owners usually register in a special format if styling and design is an important part of the trademark. With this format, you get protection specifically for how the trademark looks. Example: “M” of McDonalds.
Meaning of “TM” and “R” symbols in Trademarks.
TM symbol: – The TM symbol is used when an application for trademark is made with the trademark registry. The TM symbol is thus used to indicate the fact that a trademark application exists with respect to the trademark and serves as a warning for infringers and counter-fitters.
R symbol: – Once a trademark is registered, then the applicant can start using the ® symbol next to the trademark. The R symbol signifies that the trademark is registered and enjoys protection from infringement under the Trademark laws.
Note: – SM symbol is used when trademark is related to “services” and TM symbol is used when it relates to “goods”.
Registration of Trademark.
In India, the Trade Marks Act, 1999 deals with several aspects of trademarks like registration, protection, provisions of relief in case of infringement etc.
When a trademark application is filed, the registry issues an official confirmation with the date of filing and the application number. Then the Indian Trademark Office examines the application to ensure that it can be registered under the Trademarks Act and if any objection is raised against the registration, the Registry issues a reexamination report to the applicant. The applicant is then asked to submit a written response or is required to provide evidence of acquired distinctiveness, after which a hearing is arranged with the examiner.
Grounds of rejection of a Trademark.
As per the provisions of the Trademarks Act the grounds of rejection of trademark are following:
a. It deceives or confuses the people.
b. There is something that can harm religious sensitivity.
c. It is indecent or scandalous in nature.
d. Its use is forbidden. It states that a trademark cannot be registered if it only contains (a) the shape of products that form the nature of goods, (b) the shape of goods that are required to achieve a technical result, or (c) the shape of goods that gives substantial value to goods.
e. It is prohibited under the Emblems and Names (Prevention of Improper Use) Act. 1950.
f. Its identity with an earlier trade mark and similarity of goods or services covered by the trade mark
Duration of registration.
As per the provisions of Trademarks Act a Trademark can be registered only for 10 years and after the expiry of this period the trademark is required to be renewed
What are the benefits of registering a trademark?
Trademark registration gives the owner the exclusive right to use the trademark in relation to the goods or services for which the mark is registered, to indicate this with the (R) symbol, and to seek redress of infringement in the appropriate courts of the country. However, the exclusive right is subject to any conditions recorded in the register, such as limitation of the area of use, etc. Also, where two or more persons have registered identical or nearly similar marks due to special circumstances, such exclusive right does not operate against each other. .
A registered trademark owner can further build and protect the reputation of its products or services, prevent other traders from illegally using its trademark, sue for damages, and ensure the destruction of infringing goods or labels.
Who can apply for Trademark and How?
Any person claiming to be the owner of a trademark used or proposed to be used by him may apply for registration in writing in the prescribed manner. The application should include the trademark, goods/services, name and address of the applicant and representative (if any) with power of attorney, period of use of the mark. Application should be in English or Hindi. It should be filed with the appropriate authority.
Passing off and infringement of Trademark.
Passing off: – It is the making of some false representation which is likely to lead someone to believe that the goods or services belong to someone else. In layman’s terms, passing off occurs when a trader/entrepreneur/or other person makes a false representation to their customer or consumer to lead them to believe that the goods or services they are supplying are the property of another person. Passing off arises when there are false claims and harm to the existing reputation or goodwill of the owner. Passing off arises when the false representation is with regards to unregistered trademark. Suit for infringement in case of passing off can be filed before a District Judge as per section 134(1) C of Trademarks Act.
Infringement: – Trademark infringement is referred to in Section 29 of the Trademarks Act 1999. It states that if a person uses a trademark that is registered by another corporation or individual and causes confusion in the public eye, that person will be liable for trademark infringement.