Published Tue, 21 Mar 2023
Branding aims at developing an image for your product, service and company that differentiates you from your competitors and thereby building a distinctive and attractive presence in the market that helps gain and retain loyal customers. It devolves a sense of quality, credibility, and customer satisfaction.
Protecting the brand legally is as equally important as creating a brand. The legal pronunciation of a brand is a trade mark.
A trademark is a visual symbol represented by a word signature, name, device, label, numerals or colors, or a combination thereof which confers an exclusive right to prevent third parties from using the signs that distinguish a brand in the course of trade for identical or similar goods or services. A trademark helps to legally differentiate it from products of the same kind. It exclusively identifies a product of a specific company and also resembles the company's ownership of the brand. Trademarks create an impression in the mind of customers. Trademark adds extra security to the protection of the product against competitors in the relevant markets.
Considering current business scenario a trademark performs the following functions:
Helps identifying and differentiating the goods / services, including its origin from that of the others in the relevant market.
Legal expression of brand in the form of a trademark guarantees consistency in quality
Promotion of the goods/services with the help of innovative branding strategies and advertising campaigns.
Creating an image for the goods/ services in the eyes of customers.
Trademark registration is legally acquiring the right to use a brand name. The Trademark Act, 1999 deals with the registration of a trademark in India. One can register a trademark in India by filing an application at the Trade Marks Registry (TMR) within the Office of the Controller General for Patents, Designs and Trademarks (CGPDTM). A registration certificate is provided by the Indian Trademark office after completion of trademark registration.
Though Trademark registration isn't compulsory for using a brand name, it is widely recommended to get a brand registered under a trademark as the assignment and licensing of trade mark rights may play a significant role in brand commercialization.
Trademark Registration indeed adds a lot of value to the business. Trademark registration prohibits companies to misrepresent their products as that of other companies. Trademark registration protects the goodwill and reputation of a business ensuring market competitiveness and business success.
In principle, any sign capable of distinguishing the goods or services from those of other competitors in the market constitutes a trade mark. However, when choosing the trade mark, there are certain requirements or limitations that you need to consider:
A mark should be unique, invented or coined terms or unique geometrical designs. Geographical name, common personal name or surname must be avoided.
A mark must be distinctive, meaning that it should consist of a sign that serves to identify your products or services and distinguish them from those of other undertakings.
A mark should not be descriptive of the specific goods or services that you wish to commercialize. Generic terms used to identify those goods or services, or terms that describe their characteristics, would not be accepted. Avoid laudatory word or words that describe the quality of goods (such as best, perfect, super etc.)
A mark should be capable of being represented. Most trademark offices require graphical representation, even though some also accept other means of representation for special types of marks (e.g., MP3 audio recordings for sound marks).
A mark should not be functional, which means that the sign that constitutes the trade mark should not consist exclusively of a characteristic that results from the nature of the goods themselves or that is necessary to obtain a technical result. This is especially relevant in the case of three-dimensional marks.
A mark should not be deceptive. A sign conveying a false origin or false characteristics of a product would be refused for protection on grounds of being deceptive. Most countries would refuse protection as a trademark for signs that are contrary to public order or morality. State flags, State emblems and names and emblems of intergovernmental organizations are excluded from protection as trademarks in most countries around the world.
Most importantly, one must make sure that the proposed trade mark is still available in the market and is not the same as or similar to a well-known mark or a trade mark already registered by someone else for the same goods or services. Therefore, it is very important that you make an exhaustive search for the availability of your trade mark in those markets where you would like to get it protected.
Here is a list of different types of trademarks that can be registered in India-
1. Name
It is the most common type of trademark. An important aspect to be kept in mind while registering a name as a trademark is that it should be unusual for trade to adopt as a mark. Various kinds of names that can be trademarked are categorized below:-
Product name
Companies often choose to register a trademark for the name of their products.
Example - McVEGGIE, McMUFFIN, McCHICKEN, McMASALA are registered as trademarks by McDonald's corporation.
Business name
Registration of a business name as a Trademark is the first step for every business. A business name creates brand recognition in the mind of consumers. Trademark registration of a business name prohibits the other companies from using the registered name without creating confusion in the mind of consumers.
Example – Business names like “PARLE”, “RELIANCE POWER” are registered Trademarks.
Name of a person
Trademark registration is also applicable for the name of a person if the person earns from it.
In case, someone wants to use a name as a trademark, then a NOC needs to be issued by the owner of the trademark. The trademark registration of a name is a common practice among celebrities which allows them to prevent others from using their name for dishonest commercial purposes
Example - Bollywood celebrities like “SHAH RUKH KHAN” and “KATRINA KAIF” etc. have registered their names as trademarks
Surname
Trademark registration of surnames is usually done by those who are carrying out business in their family name. Trademark of a surname is only allowed to the surnames which have a business associated with it. Though, common surnames aren't allowed for trademark registration by the ministry.
Example - “TATA”, “Mahindra”, “BAJAJ” are trademarked surnames.
2. Abbreviations or Numbers-
Trademarks can be letters, abbreviations, or a combination of numbers and letters that helps to identify and distinguish any product or service of a particular brand.
Example - “IBM”, “BMW”, 777
3. Logo or symbol
Logo or symbol is a very common way used by brands to distinguish themselves from others. Trademark registration of logos and symbols helps to create a unique identity of a brand in the market.
4. Tag line
A tagline can be termed as a slogan that defines the thought behind the product or service by adding a dramatic effect. Tag lines create an impact in the mind of consumers about the product or service.
Example - “I'm loving it” tagline of McDonald's.
5. Sound mark
Trademark registration of sounds is possible when the mark is represented in conventional notation or described in words by being graphically represented.
Example - “Yodel” sound is trademarked by Yahoo.
6. Scent mark
Though, it is very tough to graphically represent a scent for a trademark, it is possible to represent through its chemical formula.
7. Motion mark
A moving logo or hologram can be termed as a motion mark. For trademark registration, the images of the movement need to be represented in sequence.
Example - Logo of Microsoft
8. Shapes
The 3-dimensional shapes of products can also be registered as a trademark.
9. Packaging
A label or packaging of a product can be trademarked only if it contains a unique design and color which distinguishes it from the other products.
Example - Packaging of Dairy Milk
The trademark is registered by filing an online application on Trademark Portal (Online Filing of Trademark Version 3.0) and the symbol “TM” can directly be used after filling the online form.
Process for registration of a trademark which is mentioned below -
1. Search for availability of Trademark
This is the first process for registering a trademark. There may already exist a similar trademark registered in the appropriate class, so searching the availability of the desired trademark becomes necessary.
The availability of the trademark can be checked through this link - click here
2. E- filing of Trademark Application
After ascertaining the availability of trademark in the right class, the trademark application form will be filled and submitted along with the requisite documents and paying the prescribed fee online. The registration can be done through this link - click here
3. Examination
After reviewing the trademark application, if the examiner has some questions, the trademark is marked for examination. This is sent to the applicant as a trademark objection notice and a response is required to be submitted within 30 days. Once the officer is satisfied, it is published in the trademark journal, otherwise the applicant shall be called for a show cause hearing.
4. Trademark Opposition
After publication in the journal, the trademark shall remain open for objection by third parties. There is also a chance for a third party to oppose your application. In that case, the applicant has to submit a counter-statement to the Registrar within 2 months stating why the opposition isn’t valid.
The validity of the trademark is 10 years whereas it can be renewed after filing the TM-R form and paying the required fees.
5. Registration certificate
A registration certificate is issued with a seal of the Trademark office. After receiving the registration certificate, the symbol ® can be used.
Usually, the processing of a trademark application can take around 18-24 months.
The validity of the trademark is 10 years whereas it can be renewed after filing the TM-R form and paying the required fees.
Copy of PAN of the applicant
Logo or brand name to be registered
Address proof of the applicant
User affidavit
Incorporation certificate (if applicant is other than individual)
Proof of trademark use
MSME/ Start-up recognition certificate
Though trademark registration isn't compulsory it is essential to protect a brand's identity. The process may be a bit time-consuming but it is worth waiting for. The government is also taking initiatives for MSMEs by providing relaxation in fee for trademark registration. Trademark enforces one’s rights against infringers and counterfeiters and with passing of time may become your strongest asset.
