Trademark refers to one’s exclusive right of use over a letter, symbol, logo, phrase or graphics and in any case of infringement, the party holding the Trademark has the right to take appropriate legal actions. But for that to happen, one has to register a trademark with the proper authorities and have proper certification as proof of trademark.
The detail trademark registration process in India:
The entire process and procedure of trademark registration in India today is convenient and less complex than it used to be. Today you can trademark any or a mix of the following items.
- Letter
- Word
- Number
- Phrase
- Graphics
- Logo
- Soundmark
- Smell
- Combination of colours
Below is a simplified process of trademark registration in India:
A trademark Application can broadly be divided into single class and multi class. Trademark application seeking trademark from a convention country can also be filed within India within six months of the priority date.
- Filing the application:
The trademark application can be filed in two ways – manual and online. For manual filing of application, one has to physically go to the office of the Registrar of Trademark which located in major cities like Delhi, Kolkata, Mumbai, Ahmedabad and Chennai. After submitting your application, you have to wait for at least 15-20 days for the receipt of acknowledgement. But in case of e-filing you will get acknowledgement receipt immediately online after which you can use the TM symbol beside your brand name. Another advantage of efiling is that in case of rejection the applicant gets a second chance for filing the trademark application using the same SPICe form without any additional charges. In case the application gets rejected the second time, applicants can use a new SPICe form and file a new application scratch.
- Examining the application:
After the filing of application, the registrar checks whether all legal parameters have been met in filing the application and whether your brand name meets all the legal requirements or not. Only after satisfying himself fully he will approve your trademark application.
- Publishing of trademark in Indian Trademark Journal:
If your trademark application does not get rejected at the examination stage then it will published in Indian Trademark Journals. If no one objects to your trademark within 90 days (120 days in some cases) then your application of trademark will move towards acceptance.
- Issuance of certificate:
In case of no objection within 90 days a trademark certificate will be issued to you which means you have been granted trademark of your brand and no one else can now use that name or brand.
Grounds in which the application can be rejected:
After examining the trademark application, the registrar may as well choose to reject the application on relative or absolute grounds.
- Relative Grounds for Rejection of Application:
The relative grounds for rejection or objection of trademark application under section 11 of Trademark Act, 1999 are:
- If it is found to be similar in identity or appearance with an earlier trademark for any goods and services
- If it is found that the mark is identical or similar to an earlier trademark and use a mark which would allow the applicant to gain an unfair advantage or damage the reputation of the already existing trademark
Note: For these two rules, the term ‘earlier trademark’ means an already registered trademark or a well-known mark.
- If the registering of the trademark violates of any existing law
- Absolute Grounds for the Rejection of Trademark Application:
The absolute grounds for rejection or objection of trademark application under section 11 of Trademark Act, 1999 are:
- The mark lacks distinctiveness
- It’s deceptive of the character of the goods and services
- If it consists of mark which has become customary and bonafide in the established practices of the trade
- Marks which could create public confusion
- Marks hurting religious sentiments
- Marks containing obscene material
Marks whose use is prohibited under Emblems and Names (Prevention of Improper Use) Act, 1950.
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