As people are now getting more and more aware about securing their brand name, the trademark filing has seen a tremendous growth in numbers.
But as it is an old saying half knowledge is worse than ignorance. This saying aptly fits in today’s scenario.
The young India is actively contributing to make in India feel and India has seen a tremendous number of new ventures and startups.
Apart from basic business incorporation it is well settled that a person needs to focus on growth of a company into a brand. The first step towards the brand creation process is getting your trademark registered and legally secured.
But most of the start-ups are not well aware of the process and legal requirements associated with trademark registration.
Before proceeding a person must conduct a thorough search in respect of the Brand name chosen.
And this search shall not just restrict to the name availability in a particular trademark class, but also shall extend to the other criteria such as it shall not be a descriptive and more we shall also try not to take a brand name that is significantly similar to the existing registered brand.
In order to make the above statement more clear, let us take examples of few brand names
Example 1: will make you understand why a phonetically similar Brand name even tough available, must not be opted.
livolex – Already registered Brand and levolax- Brand name that client wants to register under class 5.
Note: In above example both the Brand Name, there exists only a difference in spelling that is two letter “I” and “e”
LIVOLEX AND LEVOLAX.
1. Class means the category under which your product /goods or service falls, there exists 45 classes in Indian Trademark Registration system.
2. Class 5 is mainly for Pharmaceutical, veterinary and sanitary preparations; dietetic substances adapted for medical use, food for babies; plasters, materials for dressings; materials for stopping teeth, dental wax; disinfectants; preparation for destroying vermin; fungicides, herbicides
3. For detailed description of trademark classes see http://www.company360.in/which-trademark-class-do-you-fit
Here in our example our product is pharmaceutical medicine, hence we will search it in class 5.
Suppose you want to get your trademark registered for the brand LEVOLAX in class 5.
Even if this brand name has not been taken and ipindia website shows you its availability.
It is advisable not to proceed with filing of this brand name.
Reason being it is phonetically similar to already registered trademark livolex. i.e even though the spelling and representation of LEVOLAX might be different from Livolex but it’s pronunciation and sound produced is confusing when compared to already registered brand LIVOLEX.
Therefore, a learned lawyer will not suggest you to proceed with registration of Brand Name Levolax, even if it’s available.
Next example will explain you what problem is associated with descriptive, describing words as a Brand Name.
Example 2: Ghane kesh, Nirmal water- brand name a client wants to proceed with registration in any X class.
When a client wants to proceed with trademark registration he shall try not to opt for descriptive brand name i.e a brand name that depicts the quality, quantity or any tangible feature of any goods or product.
Because such brand name is expressly prohibited under trademark laws of India.
Like Ghane Kesh- it is word that is essentially describing the quality of hairs and most commonly used to describe hair type, hence law will never recommend monopolistic right over the same.
Same is the case with Nirmal water, word nirmal describes the quality of water, in a way which is very common word used to describe pure water in general public.
Hence, such Brand names are generally refused and it is always advisable not to opt the same.
Example 3: Avoid Well known Marks. Such as (TATA),(BATA)etc.
It is always advisable to people to never create their brand names which are similar to any of the well known mark, because generally these marks are not accepted during the process of examination of trademark or hearing.
Parting advise, All future trademark applicants, shall also keep a regular check about the status of the their trademark application till its grant.
As, generally people are unaware about the issuance of examination report in respect of their application or hearing notice issued, which in case left un-attended leads to application being abandoned and so is the rights and of course the waste of efforts along with Govt. fees associated with it.
For, more information contact email@example.com
Anu Sharma is a qualified Patent attorney and Director at company360.in, a techno-legal graduate from IIT Kharagpur. For any legal advice you may reach her at firstname.lastname@example.org