Trademark- A Protection for your Brand
What is a trademark?
A trademark (popularly known as brand name) in layman’s language is a visual symbol which may be a word signature, name, device, label, numerals or combination of colours used by one undertaking on goods or services or other articles of commerce to distinguish it from other similar goods or services originating from a different undertaking. The legal requirements to register a trademark under the Act are:
- The selected mark should be capable of being represented graphically (that is in the paper form).
- It should be capable of distinguishing the goods or services of one undertaking from those of others.
- It should be used or proposed to be used mark in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services and some person have the right to use the mark with or without identity of that person.
How to select a good trademark?
If it is a word it should be easy to speak, spell and remember. The best trademarks are invented words or coined words or unique geometrical designs. Please avoid selection of a geographical name, common personal name or surname. No one can have monopoly right on it. Avoid adopting laudatory word or words that describe the quality of goods (such as best, perfect, super etc.)
It is advisable to conduct a market survey to ascertain if same/similar mark is used in market.
What is the function of a trademark?
Under modern business condition a trademark performs four functions
- It identifies the goods / or services and its origin.
- It guarantees its unchanged quality
- It advertises the goods/services
- It creates an image for the goods/ services.
What are different types of trademarks that may be registered in India?
- Any name (including personal or surname of the applicant or predecessor in business or the signature of the person), which is not unusual for trade to adopt as a mark.
- An invented word or any arbitrary dictionary word or words, not being directly descriptive of the character or quality of the goods/service.
- Letters or numerals or any combination thereof.
- The right to proprietorship of a trademark may be acquired by either registration under the Act or by use in relation to particular goods or service.
- Devices, including fancy devices or symbols
- Combination of colors or even a single color in combination with a word or device
- Shape of goods or their packaging
- Marks constituting a 3- dimensional sign.
- Sound marks when represented in conventional notation or described in words by being graphically represented.
What are the benefits of registering a trademark?
The registration of a trademark confers upon the owner the exclusive right to the use the trademark in relation to the goods or services in respect of which the mark is registered and to indicate so by using the symbol (R), and seek the relief of infringement in appropriate courts in the country. The exclusive right is however subject to any conditions entered on the register such as limitation of 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.
What does the Register of trademark contain?
The register of trademark currently maintained in electronic form contains inter alia the trademark the class and goods/ services in respect of which it is registered including particulars affecting the scope of registration of rights conferred; the address of the proprietors; particulars of trade or other description of the proprietor; the convention application date (if applicable); where a trademark has been registered with the consent of proprietor of an earlier mark or earlier rights, that fact.
Can any correction be made in the application or register?
But the basic principle is that the trademark applied for should not be substantially altered affecting its identity. Subject to this changes are permissible according to rules detailed in the subordinate legislation.
Can a registered trademark be removed from the register?
It can be removed on application to the Registrar on prescribed form on the ground that the mark is wrongly remaining on the register. The Registrar also can suo moto issue Notice for removal of a registered trademark?
Let us check the difference between Wordmark, Logo Mark and Logo Composite Mark and its basic difference’s
This simplest of the three, the word mark refers to the brand name. So if a brand – let’s say Reliance, Hero Motors or Parle – has trademarked only the word, it is known as a wordmark. Most startups will only register their brand name within their class (a toy manufacturer would only file a trademark under Class 28). This means that even if there is already an existing business operating under the same name as the toy manufacturer but in another sector, the trademark would still be approved unless the other business can prove that his customers are confused about the ownership of the toy manufacturer’s brand. If this existing business, however, is a very large brand (for e.g., McDonald’s), there’s no chance the wordmark would be approved even if the application is restricted to an industry that McDonald’s is not into.
If you have designed a unique, attractive logo and that is how you want your customers to notice you, then you would want to file a trademark for that logo. There are many successful brands that are famous for their logos which people can instantly identify. For example, Nike, Mercedes, Apple, etc. The reason these brands have trademarked their logos is that they use them extensively on their products in marketing and advertising and all other interactions with customers. If you notice, the three brands mentioned above do not have any mentions of their brand name on the logos.
Logo Composite Mark
A logo composite mark incorporates the name of the brand into the logo. It is a combination of the logo and the brand name. Prominent examples are BMW and Coca-Cola. Levi’s has an elaborate logo composite mark, which includes even the position of its label at the back of its jeans.
Startups, however, tend to file a logo composite mark only when they’ve found that their brand has already been trademarked by some other entity or is too similar to a registered brand name. While the registry could certainly raise an objection, these applications often get passed on the grounds that they are being represented by a distinct mark. That said, it’s generally a bad idea to use a brand name that isn’t entirely unique, as problems could arise should your brand pose a threat to the already registered brand name.