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Trademark

A trademark or trade mark is a distinctive sign or indicator of some kind which is used by an individual, business organization or other legal entity to uniquely identify the source of its products and/or services to consumers, and to distinguish its products or services from those of other entities. A trademark is a type of intellectual property, and typically comprises a name, word, phrase, logo, symbol, design, image, or a combination of these elements. There is also a range of non-conventional trademarks comprising marks which do not fall into these standard categories.The owner of a registered trademark may commence legal proceedings for trademark infringement to prevent unauthorised use of that trademark. However, registration is not required. The owner of a common law trademark may also file suit, but an unregistered mark may be protectable only within the geographical area within which it has been used or in geographical areas into which it may be reasonably expected to expand.

The term trademark is also used informally to refer to any distinguishing attribute by which an individual is readily identified, such as the well known characteristics of celebrities.
When a trademark is used in relation to services rather than products, it may sometimes be called a service mark, particularly in the United States.

Definition
A trademark is literally a “mark” that one business uses to distinguish its products or services from another. This trademark definition from the Intellectual Property Institute of Canada (IPIC) is more detailed:

“A trade-mark is a word, design, number, two-dimensional or three-dimensional form, sound or color, or a combination of two or more of these elements which a trader uses to distinguish his/her products or services from those of his/her competitors and serves to establish goodwill with the consumer.”

A trademark is not a trade name. A trade name is the name under which you conduct your business. It can only be registered under the Trade-Marks Act if it is used to identify wares or services.As businesses primarily use trademarks for marketing purposes, most businesses register their trademark(s) so other businesses can’t use them.

Types of Trademark Protection

Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. Trademarks, which are used in interState or foreign commerce, may be registered with the Trademark Office of concerned countries individually or through Madrid Agreement Route . India is yet to become Member of the Madrid agreement.There exist three different types of trademark protection:

  • Common law
  • State / Federal registration

In order to gain common law rights in a trademark, the owner must use the mark on goods or services in commerce. These rights may be limited to the area in which the owner is doing business. Countries like India have, only federal registration system for trademarks. However some countries like USA have provision of registration in any State as well as from the federal trademarks office. In order to secure a State registration, the owner must use the goods or services in commerce and simply file the mark with the Secretary of State. The boundaries of protection for a State trademark are limited to the particular State. A federal trademark registration extends the owner's trademark rights nationwide. The federal registration serves as notice to all other trademark owners and generally trumps any other form of trademark protection, of course with some limitations

Relevant Forms and Procedure for Obtaining Trademark in India

(a) Objectives
The aim of the Trademarks Registry is to provide for registration and better protection of trade marks in India and for the prevention of the use of fraudulent marks on merchandise.

b) Functions

The Trademarks Registry had been functioning since 1.9.1940 for the administration of the Trade and Merchandise Marks Act, 1958 read with the Trade and Merchandise Rules, 1959 Since September 20, 2003 the Trademarks Act 1999 read with The Trademark Rules 2001 has come in force.The functions of trademark is as follows:

  •   It identifies the product of its origin
  •   It guaranties its unchanged quality
  •   It advertises the products &
  •   It creates an image for products

c) Procedure for Registration of Trade Marks
Before applying for registration of a trade mark, it is desirable to conduct a market survey through an investigating agency, etc. to ascertain whether any identical or deceptively similar mark is used for the same goods or services by any other person /party in the market.

It is also desirable before applying for registration to obtain preliminary advice regarding the distinctiveness of the mark from the Registrar by making a request on form TM-55 with the prescribed fee of Rs.50/-. The request on form TM-55 can be filed at the Trade Marks Registry, Mumbai or at the regional branch offices at Delhi , Kolkata, Chennai or Ahamadabad.

Also a request on form TM-54 can be made with prescribed fee of Rs.50/- to the Trade Marks Registry, Mumbai or at the said any branches to obtain an official report to ascertain whether any identical or deceptively similar trade mark is pending for registration in respect of the same goods services. It is also possible to make a personal inspection or search through the records of the Trade Marks Registry on payment of prescribed fee of Rs.50/- per hour.

After following the above procedure, an application for a trademark may be made on form TM-1 with the prescribed fee of Rs.300/- at the appropriate office of the Trademarks Registry. The appropriate office means the office within whose territorial limits the applicant resides or has his principal place of business in India . In case of a foreign applicant, the place mentioned as address for service in India will determine the appropriate office at which the application should be filed.

An application on form TM-1 should be filed in triplicate along with fee of Rs.300/- and with 10 copies of additional representations of the mark. The additional representations shall contain the mark, name and address of the applicant, or MOA in case of a Society / Company, class, goods and date if any from which the mark has been used etc. A trademark particularly a device or figurative mark may preferably be a black and white representation on bromide prints of dimension of 8 cm x 8 cm. However if colour' is also an attribute in the Trademark for its districtreness, coloured photographs / print may be provided instead of said bromide paper.All the fees may be paid in cash, or Demand Draft or local cheques drawn in a scheduled bank at the place where the appropriate office is located payable in the name of the Registrar of Trademarks. An application to register a trademark should be made in respect of goods comprised in one class only.


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