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2.Trademark Search

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4. Use The Symbol

TRADEMARK MEANING AN OVERVIEW

A trademark is a legal tool that helps protect your brand’s special name, logo, and other important things. It makes your business different from others and stops others from using your business’s identity. This is important because without a registered trademark your business is at a high risk of damaging it’s reputation and revenue. Trademarks are very important in today’s competitive market where it’s important to be recognized and trusted by customers. It’s like a symbol that shows your company as genuine and makes customers believe in your business.

UNDERSTANDING TRADEMARKS IN DEPTH

Trademarks go beyond aesthetics. They provide the owners with the exclusive rights to use a specific symbol, word, or design for their products or services. If someone else tries to copy or imitate their trademark, the owners can take legal action to stop them. Trademarks can cover various aspects, such as logos, names, slogans, sounds, or even scents associated with a brand. By registering a trademark the business owners not only get legal rights to use an identity but, additional legal benefits as well. So, in a nutshell, a trademark is like a special badge that helps businesses stand out. It lets customers know who they’re dealing with and helps them make trustworthy choices. For companies, trademarks are like superheroes that protect their brand and keep the competition at bay.

THE 7 TRADEMARKS AND IT'S USES

Product – A product mark is a type of trademark that is used on any product.
Service – Is used for services.
Certification Trademark: Certifies that a product or service meets specific standards set by an independent certifying organization.
Shape Trademark: Protects the shape of a particular product.
Pattern Trademark: Protects a specific pattern or design used on or in connection with a product or service.
Sound Trademark: Involves a unique sound that represents a brand, such as the “NOKIA” tune.
Collective – A special type of trademark that represents a group or an association, It’s like a symbol that shows customers that certain products or services come from that group, For example-

The “Darjeeling” mark is a famous example of a Collective Trademark in India. The Tea Board of India owns and manages this Collective Trademark, ensuring that only tea produced in that specific geographic area and meeting specific quality standards can bear the “Darjeeling” mark.

WHAT IS A HOUSE TRADEMARK?

A house trademark is a special kind of trademark that represents the entire business rather than a specific product or service. It helps identify all the goods or services associated with a company. For example, “ABC Corporation” may use “ABC” as its house mark for products like phones, computers, and accessories.

WHY TRADEMARKS ARE ESSENTIAL?

Massive Legal Protection: Registering a trademark grants the owner superior legal rights to use the trademark and protect it from unfair use in the marketplace.
High Brand Recognition: Trademarks provide nationwide recognition. Ensuring your brand’s reputation remains intact.
Building Trust: A Registered trademark enhances the customer’s trust and they prefer to buy from recognized brands.
Business Growth Opportunities: Trademarks open doors to opportunities like licensing and franchising, and even selling the business for profit.
Compensation for Damages: Trademark owners have the power to claim compensation for damages caused by any unethical use of their trademark.

HOW TO REGISTER A TRADEMARK?

Search: Before registering your trademark the first and most important thing is to conduct a thorough search. what it does is, it helps you ensure that no one else is using the same or similar trademark.
Choose your class: Select the right class under which your trademark is going to be filed whether it is goods or services.
Prepare and filling your application: Provide all the necessary information, such as the name you want to register, goods, and services associated with the brand, and documents required by the trademark office.
When done, the application is filled out at the trademark registry, accompanied by prescribed fees.
Examining your application: After submitting your trademark application, it will go under examination by the trademark office to ensure that it meets all the requirements for registration.
Replying to oppositions: If the trademark office raises any objections or if there is a opposition from third party, you may need to respond to these issues, in that case, a trademark attorney will help you.
Get it registered: When your application is approved, you will receive a registration certificate from the trademark office.

WHO CAN REGISTER A TRADEMARK?

An individual: A person can register a trademark in his own name.
Company: A company, whether it’s a private limited company, public limited company, or any other type of corporate entity, can register a trademark.
Partnership Firms: A partnership firm can register a trademark in the name of the partnership firm.
Society: A registered society, such as a cooperative society, can register a trademark.
Trusts: A public or private trust can register a trademark in the name of the trust.
Other Legal Entities: Other types of legal entities, such as non-profit organizations, institutions, or government bodies, can also register a trademark.

UNDERSTANDING THE TRADEMARK CLASSES

There are two categories for trademark classes, one is for goods and the other one is for services, When you want to register a trademark, you need to choose the class or classes that match the goods or services related to your trademark. This system helps ensure that trademarks are registered and protected in the right category.

DOCUMENTS REQUIRED FOR TRADEMARK REGISTRATION

Entity	Documents
Individual	TM-48 (authorization of agent), Pan Card, Aadhar Card
Single Firm	TM-48 (authorization of agent), Pan card, Aadhar Card, Trade License, GST certificate
Partnership Firm	TM-48 (authorization of agent), Partnership deed, Partnership pan card, MSME certificate (if available), word/logo/etc. whichever to be applied
Limited liability partnership (LLP)	LLP deed, Incorporation certificate, LLP Pan card, MSME certificate (if available), word/logo/etc. whichever to be applied.
Company	TM-48 (authorization of agent), Company Pan card, Incorporation certificate, MSME certificate (if available), word/logo/etc. whichever to be applied.

FEES FOR TRADEMARK REGISTRATION

Trademark registration is not cost free. Trademark registration Fee is applicable per class. The minimum fee for trademark registration is Rs 4500/-. Trademark Registration fee is applicable for goods and services. The Government fee for Trademark Registration for individuals, start-ups, single firm, small entities (MSMEs), is Rs 5,000/- (offline), Rs 4500 (online), whereas trademark registration fee for partnership firm, LLP, company, is Rs 10,000/- (offline), Rs 9000 (online). Online application can be filed through the official portal and offline by submitting TM-A with required documents physically or by post at the office.

MODES OF FILLING A TRADEMARK

Online Filing: The easiest and most convenient way to file a trademark in India is through the online portal provided by the government. You can visit the official website of the Trademark Registry and follow the instructions to fill out the application form online.
Physical Filing: If you prefer the traditional way, you can physically submit your trademark application at the appropriate office of the Trademark Registry.
Authorized Representative: You can also appoint an authorized representative, such as a trademark lawyer to file the trademark application on your behalf. They will handle all the paperwork and ensure that your application meets the necessary requirements.

HOW TO FILE A TRADEMARK ONLINE?

Visit the official website of Intellectual Property India (IPI) at https://www.ipindia.gov.in/.
Register yourself as a user on the IPI website by creating an account.
Once registered, log in to your account.
Click on the “Trademark” tab or section to access the trademark-related services.
Fill in the necessary details of the trademark application form, including the applicant’s details, trademark details (logo, word, or both), and the class or classes under which your trademark falls
Upload the required documents, such as the proof of claim to the mark (such as a user affidavit or an authorization deed), and a Power of Attorney (if you’re using a trademark agent or attorney).
Pay the fee for filing the trademark application. The fee varies depending on the type of applicant (individual, small enterprise, or others).
Review the filled-in application form and documents for accuracy and completeness.
Submit the application.
After submission, you will receive an acknowledgment containing the trademark application number.

You will need this number for checking your trademark application status, you can monitor the status of your trademark application on the IPI website using the application number.

HOW MUCH TIME FOR REGISTRATION?

Trademark registration time can be a little time-consuming depending on the type of application. On average it takes anywhere from 6 to 12 months to register a trademark.

WHAT IS TRADEMARK OPPOSITION?

Trademark opposition occurs when a party believes that their brand’s reputation may be harmed by the registration of your trademark. It involves a legal process to prevent the trademark from being granted. It is advisable to seek legal advice from a trademark professional to handle the opposition process.

WHAT IS TRADEMARK INFRINGEMENT?

Trademark infringement is when someone uses a similar or the same trademark without the permission of the owner of the trademark. The trademark owner can take legal action to stop the infringement and seek compensation for damages caused.

TRADEMARK PASSING OFF

when someone falsely presents their goods or services as connected to a well-known trademark, deceiving consumers. To deal with passing off, gather evidence, send a cease and desist letter, negotiate a resolution, and take legal action if necessary.

HOW TO DEAL WITH PASSING OFF?

Identify and gather evidence: Collect evidence that clearly shows the unfair use of your trademark.
Cease and desist letter: Prepare a clear and concise cease and desist letter to notify the party, Clearly state your rights to the trademark, provide evidence, and demand that they immediately stop using your trademark.
Negotiate and resolve: If the party responds to your cease and desist letter, find a way to reach a resolution, such as modifying their branding, or entering into a licensing agreement. Seek legal advice, if necessary, to ensure your rights are protected during the negotiation process.
Legal action, if required: If the negotiations fail or the infringing party refuses to cooperate, take legal action, you can file a lawsuit in the appropriate court. The court will evaluate the evidence and arguments presented by both parties and make a decision based on the merits of the case.

HOW TO OVERCOME TRADEMARK REFUSAL

Review the refusal letter: Carefully read and understand the reasons provided in the refusal letter for rejecting your trademark application.
Seek legal advice: Get professional guidance on the best approach to overcome the refusal.
Address the examiner’s concerns: Develop a response that directly addresses each concern raised in the refusal letter, Provide evidence, arguments, or clarifications to support why your trademark should be approved.
Submit a response: After preparing the submission follow any specific guidelines provided by the office for response submission.

TRADEMARK REMOVAL

When a trademark is permanently removed from the trademark registry, The removal can be for various reasons like not renewing the trademark, not using it for a period of more than 5 years, etc.

TRADEMARK VALIDITY

All the registered trademarks are valid for 10 years from the date of application, before the expiry of 10 years, a trademark has to be renewed for another 10 years by paying the prescribed government fees. A trademark registered in India is never valid in other countries and the trademark registration remains valid only in India.

USING TRADEMARK SYMBOLS

The trademark law permits the use of the symbols every time a trademark is used. The symbol TM can be used on the trademark after filing the application and when registered the symbol ® can be used.

MONITORING AND ENFORCEMENT

Monitoring and enforcement of trademarks are important in ensuring your business’s maximum protection, It involves actively monitoring the marketplace for any unauthorized use of your trademark, and if you find any unfair use, take appropriate actions, such as sending cease-and-desist letters, legal actions, etc.

THE COMMON MISTAKES TO AVOID

Choosing a Descriptive or Generic Name: When choosing a name for your business, it’s important to avoid picking a name that simply describes the product or service you offer. For example, if you’re starting a company that sells shoes and you name it “The Shoe Store,” it’s considered a descriptive name because it directly describes what you’re selling. A generic name is a name that is commonly used to describe a product or service.

Fail to Conduct a Proper Trademark Search: Before applying for a trademark, it’s undoubtedly crucial to conduct a thorough search to ensure that a similar trademark doesn’t already exist. not taking this step seriously may lead to rejection or legal issues in the near future.
Improper Specification of Goods or Services: When filing a trademark application, clearly define the specific goods or services your trademark will cover.
Incorrect Class Selection: Selecting the wrong class can weaken your trademark’s protection. It’s crucial to accurately identify the appropriate class(es) that align with your business offerings.
Insufficient Evidence of Trademark Use: It is necessary to provide evidence of the trademark’s actual use within a certain period. Neglecting to submit sufficient proof, such as invoices, packaging, or promotional materials, can lead to the rejection or cancellation of the trademark registration.

FREE RESOURCE AND TOOLS

Indian Trademark Office (IPO) Website: The official website of the Indian Trademark Office provides a wealth of information and resources. You can access the website at http://www.ipindia.nic.in/. It offers a step-by-step guide for filing trademark applications, downloadable forms, and guidelines for trademark registration.
Trademark Electronic Application System (TEAS): TEAS is an online portal provided by the Indian Trademark Office for filing trademark applications electronically. It allows you to complete and submit your application online, saving time and effort. You can access TEAS through the IPO website.
Intellectual Property India Mobile App: It provides a user-friendly interface to search for trademarks, access trademark journals, file applications, and track the status of your trademark registration.
Trademark Public Search: The IPO website allows you to perform a public search to check the availability of a trademark.

CONCLUSION

In conclusion, trademarks are vital for protecting your business and its identity. Registering a trademark provides legal rights, enhances brand recognition, and opens up business growth opportunities. Anyone can register a trademark, and the process involves selecting the right class, preparing and filing the application, and paying the required fees. It is essential to avoid the most common mistakes and seek professional assistance when needed.

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