What is Trademark and its Registration Process?

In simple terms, Trademark is often referred to as a brand. Trademark means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others in the market and may include the shape of goods, their packaging and combination of colours. The purpose behind trademarks is to allow people to indicate the source of the goods or services and to distinguish them from those of others in the industry. Trademark registration can be obtained for a business name, distinctive catchphrases, taglines, captions and logos whatever helps your business or product stand out from those of others in the market.

A trademark registration gives the trademark owner the exclusive right to use the mark with respect to his/her goods or services but also allows the trademark owner to prevent others from using an identical or similar mark that can be confusing for the general public. If your brand name is your company name it is always suggested to file a trademark for the same as the registration under the Companies Act will not provide the trademark protection. A Trademark Registration is highly recommended as a businessman would never want someone else to get the registration of their own brand and put them out of the competition.

DIFFERENCE BETWEEN A WORD MARK AND DEVICE MARK/LOGO

Famously, there are two type of Trademarks as described below:

• Word Mark: A word mark is a Trademark where the Trademark owner has exclusive rights to the word as a whole and he can represent the word in any font, format or any other manner. All the appearances and use of the word are protected by the Trademark Registration. Upon a word mark registration the same can be used in any manner for all the goods and services covered under it. Where the concentration of the business owner is to protect the name of the business or product from any type of infringement it is always suggested to go ahead with the word mark registration.
• Device Mark/Logo: A Device Mark/ Logo on the other hand gives the trademark owner the right to a particular combination of images, design and words taken together. Therefore, the protection given to the words encompassed in a Device Mark/Logo is limited in comparison with the word mark since the rights in a logo are entitled only to the logo as a whole and not to a specific word. If you have designed a unique and attractive logo and that is how you want your customers to notice you then a Device Mark/Logo Registration is the best option. Some of the famous companies who have their logos as one of their trademarks are Adidas, Nike, Reebok, Audi, Mercedes, Apple and many more.

Making a choice between filing for a Word Mark or Device Mark/Logo depends upon your end objective. If money is a constraint and protection of the brand name is of the utmost importance it is always suggested to go ahead with the Word Mark Registration. Filing a Device Mark/ Logo is suggested where the owner has designed a unique logo for his business and does not want anyone else to use a similar logo in the same line of business. If any changes are made to a registered logo in future the trademark protection is not granted to the new logo and hence, the owner of the business is required to apply for a new logo if he sorts trademark protection. Therefore, Trademark Registration for a Device Mark/Logo may be an expensive affair and is suggested only if you are willing to spend a good amount of money. For small businesses it is always suggested for them to go for a Word Mark Registration and in future if they additionally want a separate logo for the business the same can be filed.

OTHER TYPE OF TRADEMARKS

Other than Word mark and Device mark/Logo there are following types of Trademarks as well.

1. Sound Mark: Sound marks can be registered in India if such sound helps to identify the origin of goods or services. The sound should be unique and able to create a recall value for products and services so that the customers are able to associate such sound with your goods/services. Some example of registered sound marks in India are Yahoo, Nokia, Britannia etc.
2. Colour: If a combination or pattern of colours help to identify the origin of goods or services, then the same can be registered as a trademark. It is one of the toughest categories of trademark registrations and till date there are only 9 businesses which have successfully been able to register their colour trademark. Some examples of registered colour marks in India are Cadbury- Royal Purple, Barbie-Pink etc.
3. Shape of Goods: The shape of a product or the container in which it is served may help to identify the origin of goods or services. If the shape of goods or container has acquired distinctiveness due to its widespread use the same can be filed under Trademark. A popular example of such trademark registration is the Coca-Cola Bottle.
4. Three Dimensional Mark: Three Dimensional marks which are unique and can help to identify the origin of goods and services can be registered as a trademark in India. The mark or shape has to be significantly different from what is already available in the market so that a three dimensional mark can be registered.

USE OF TM AND ® SYMBOLS

The 'TM' symbol stands for Trade Mark. It gives an indication to the general public that the owner of the mark has filed a Trademark application with the department for exclusive rights to a mark. The 'TM' symbol can be affixed on the top right corner of the mark till the Trademark is registered with the department.

The '®' symbol gives an indication to the general public that the Trademark has been registered with the department and is not available for use by anyone except the owner of the Trademark.

TRADEMARK REGISTRATION PROCESS

Trademark Registration process is a lengthy one which varies from 6 months to 2 years from the date of filing depending upon the departmental pendency. Though the filing can be done on the same day and can be easily verified online on the Government's website.

Once the application is filed the Trademark Department may issue an Examination Report to raise objections on the application filed, the reply to the examination report has to be filed within 30 days of its issue or the application will be abandoned by the department.

Once your application is cleared from the Departmental objection or in case no examination report is issued the Trademark details are published on the Government's Trademark registry website in the weekly Trademark Journal and is open for Opposition from public for a period of 4 months from publication and if there are no oppositions the trademark application is registered for a period of 10 years.

GOVERNMENT FEES

Note: Non MSME Registered Entities include Company, LLP, Partnership Firm, Trust, Societies or any other nature of businesses which are not registered as MSME.

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