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| What is Trademarks?
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A trademark popularly known as brand name is a visual
symbol in the form of a word or a device or a label
applied to the commercial goods or service to enable
the consumer public to identify one trader's goods from
similar goods of other traders.
Under the Trade and Merchandise Marks Act, 1958 registration
of 'service mark' is not possible but under the new
Trade Marks Act, 1999 registration of 'service mark'
can be done. Such 'service mark' can be used as a trade
mark but applied to services rather than goods i.e.
Banking, Communication, Education, Financing, Insurance,
Chit Funds, Real Estate, Transport, Storage material
treatment, Processing, Supply of electrical or other
energy, Boarding and Lodging, Entertainment, Amusement,
Construction, Repair, Conveying of news or Information
or Information and Advertising.
Registration of a trade mark is not compulsory. But
for better protection it is advisable to register a
trade mark.
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| What is Servicemark?
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Under the Trade and Merchandise Marks Act, 1958 registration of 'service mark'
is not possible but under the new Trade Marks Act, 1999
registration of 'service mark' can be applied Registration
of a trade mark may be done by filing an application
in the prescribed from after filling the prescribed
from i.e. [TM-8
& TM-48] [forms can be supplied or provided
on request] and fees form the office of the Trade Mark.
Such 'service mark ' can be used as a trade mark but
applied to services rather than goods i.e. Banking ,
Communication ,Education ,Financing ,Insurance ,Chit
Funds, Real Estate , Transport , Storage material treatment
, Processing , Supply of electrical or other energy
, Boarding and Lodging , Entertainment , Amusement ,
Construction ,Repair , Conveying of news or Information
or Information and Advertising. Each service mark has
separate fees.
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The new definition of ' Collective mark ' has been provided for the benefit
of members of an association of persons (but not partnership)
and such inclusion of ' Collective mark ' will benefit
the traditional Indian family trademarks. ‘Collective
mark ' can be applied Registration of a trade mark may
be done by filing an application in the prescribed from
after filling the prescribed from i.e.
[TM-3 & TM-48] [forms can be supplied or provided
on request] and fees form the office of the Trade Mark |
| Well Known
Trademark |
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The new definition for 'well known trademark ' has been provided for the benefit
of a trademark being used by the substantial segment
of the public.
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| Renewal of
Registration |
| The renewal of registration of
a trademark should be made for every ten years instead
of seven years under the present Act. Renewal can be
applied Registration of a trade mark may be done by
filing an application in the prescribed from after filling
the prescribed from i.e. [TM-12
& TM-48] [forms can be supplied or provided
on request] and fees form the office of the Trade Mark
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| Search of
the trade marks. |
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Before registration the applicant or person it is advisable to get the trade
mark be search after filling the prescribed from i.e.
[TM-11
& TM-54 & TM-48] [forms can be supplied
or provided on request] and fees form the office of
the Trade Mark
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| Whether
registration of Trade Mark is compulsory under the
Act? |
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No. Registration of a trade mark is not compulsory. But for better protection
it is advisable to register a trade mark.
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| How to acquire
a right of property in a trade mark? |
Person may acquire
a right of property in a trade mark in the following modes
- By use of the mark in relation to particular goods
;or
- By registration under the Act; or
- By assignment or transmission of the right from
another person
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| How
to file an application for registration? |
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- Registration of a trade mark may be done by filing
an application in the prescribed from in FORM
TM-1 along with five additional representation
on the following branches of the office of the Trade
Marks in India i.e. State wise such as:-
| Jurisdiction
of Trade Mark Offices |
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| Place
where the office of the Trademark located |
Jurisdictions
of Trade Mark Office |
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| 2.
Ahmedabad |
The State
of Gujarat, Rajasthan Union Territory
of Daman, Diu, Dadra & Nagar Haveli |
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| 3.Kolkatta |
That states
of Arunachal Pradesh, Assam, Bihar, Jharkhand
Orissa, West Bengal,Mani Pur,Mizoram,Meghalaya,
Nagaland, Sikkim, Tripura & Union
Territories of Andaman & Nocobar Islands
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| 4.
NCT Delhi |
The States
of Jammu & Kashmir, Punjab, Haryana,
Utterpradesh, Uttranchal, Himachal Pradesh
and Union Territories of NCT Delhi &
Chandigarh |
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5. Chennai |
The States
of Andhra Pradesh, Kerala, Tamil Nadu,
Karnatka & Union Territories of Pondicherry
& Lakshadweep |
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- After filling an application under the prescribed
forms i.e.
[TM-1 & TM-48] [forms can be supplied or provided
on request] the office will be allotted application
number to each and every application by Registry and
this number shall be use for feature correspondence
with the office of the trade marks.
- After allotment of the registration number i.e.
application number the application was processed for
the advertisement in the Trade Mark Journal. If the
application is found to be acceptable, then it will
be advertised in the Trade Mark Journal (official
Gazette of the Trade Marks Registry) to invite opposition
under the prescribed forms i.e. [TM-5
& TM-48] [forms can be supplied or provided
on request], if any, from the public within the prescribed
period of three months.
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| Time
from for registration of a trade mark? |
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| At present it takes
three years aprox. From the date of application. |
| Professional
help for registration? |
| As registration
of trade mark is a specialized area, it may be necessary
to employ the services of a trade mark Agent or Attorney
.However this is not compulsory. |
| Whether 'user
or proposed to be used' is very important in trade mark?
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| Yes. A trade mark
must be used in relation to the goods for which the registration
is sought or obtained.The applicant should have bonafide
intention to use the mark at the time of filing the application
and further the applicant can claim rights from the date
of user or from the date of application. |
| Whether
the proprietor of an unregistered or registered trade
mark can initiate legal action? |
| Yes. Both Civil &
Criminal proceedings The proprietor of an unregistered
mark may bring legal action against the subsequent user
by filing a civil suit for 'passing off' action on the
basis of 'prior’. |
| Whether mere
filing of trade mark application conferred any rights?
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| No Mere filing of
trade mark application will not confer any rights on the
applicant. Proprietary rights over a trade mark can be
claimed only by continuous use of the mark |
| Whether
advertisement is sufficient to establish the 'User'
of a trade mark? |
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| The advertisement
of a mark in any periodical or magazine or in electronic
media may be regarded as evidence to establish the 'prior
user' of a trade mark. |
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