In the vast and diverse landscape of India’s legal framework, the Patents and designs stand as the guardians of the innovation and the trademark stands as a guardian of our brand identity and business reputation. In a country like India, where the country is growing at a very fast speed, a person should take care of his inventions by registering them under the laws.
In the previous article, we talked about what is a trademark and how it is important for our businesses. In this article, we will discuss the Trademark Registration in India so that we can save our invention or brand identity from being theft. Whether you are an entrepreneur, a business owner or someone who needs to secure your brand must follow the process to file the trademark application to secure this.
Eligibility for Trademark Registration
While the trademark registration process is open to a wide range of entities, there are certain eligibility criteria given by the IPO which should be followed:
Any Person or Entity
Individuals, businesses, partnerships, companies, or any legal entity can apply for trademark registration by following the process of trademark registration.
Distinctiveness
The trademark which is going to be registered must be distinct from all other trademarks and must not be generic. It must be capable of distinguishing the goods or services which is going to be introduced in the market with the help of this trademark.
Proper Representation
The trademark should be applied properly for trademark registration by following all the guidelines given in the act.
Trademark Registration Process in India
Trademark registration is an important step in ensuring the protection and exclusivity of your brand’s identity and assets in India. In the trademark registration process, you will know about the different steps being followed in Indian offices to register a trademark. So let us discuss each step one by one.
Trademark Search
Before applying for trademark registration, it is most important to conduct a trademark search to ensure that the mark you are going to register is different and unique from others. You will also come to know whether the mark you are going to register is already registered or not. This step helps you to avoid conflict and rejection during the trademark registration process.
Filing the Application
Once you have done the process of prior arti to search for your mark and you come to know that your mark is unique, then you can go for the next step which is applying for registration of trademark.
You can file the application for registration in the office of the Controller of Patents, designs and Trademark office. He is also known as the controller of trademarks. This application must be completed and submitted with the prescribed fee.
Once you are certain that your trademark is distinctive, you can proceed to apply with the Office of the Controller General of Patents, Designs, and Trademarks. The application must be completed and submitted along with the prescribed fee.
The fee is Rs. 10,000/- for physical filing, which is reduced by 10% for e-filing. For a faster registration process, an additional fee of 40,000/- can be levied. Apart from the same, some other fees may be charged during trademark registration.
Here is the link to fill out the form for the registration of the trademark application:
https://www.ipindia.gov.in/writereaddata/Portal/Images/pdf/FORM-TM-A.pdf
Examination and Publication
After this filing of the application, the trademark office will examine the application to verify whether the application is following all the criteria to get the Trademark or not. If your application meets the criteria, then the office will publish your application in the trademark journal. This publication allows other interested parties to file an opposition if they have any kind of issue with your application within a specified time.
The trademark office examines the application to verify its compliance with legal requirements. If the application meets all criteria, it is published in the Trademarks Journal. This allows interested parties to oppose the registration within a specific timeframe.
Opposition Proceedings
If someone has filed an opposition against your application, then the Trademark Office will take action and try to solve this by taking proof and will hear both sides to resolve the dispute.
Registration and Issuance of Certificate
If there is no opposition to your application or you win in the opposition, then the controller of the trademark will register you Mark and will provide you with the certificate of registration. This certificate verifies that the mark does not become a registered trademark and that you are the owner of that mark. After getting the certificate, you can officially file a suit for infringement if any other person is using your mark in the market.
Term of trademark
Upon the registration of a trademark, the certificate is provided for 10 years. It means that you can use this mark for the term of 10 years to grow your business. It should be noted that you can renew your trademark after every 10 years by paying the renewal fees. And there is no restriction on renewing the trademark which means you can renew your trademark unlimited time.
Grounds for Refusal of Registration of Trademark
There are mainly 2 grounds for refusal of registration of a trademark, which are discussed below:
Absolute Grounds for Refusal
Absolute grounds are provided under Section 9 of the Trademark Act, 1999 which relates to trademarks lacking distinctive characteristics or consisting solely of common marks or signals used in trade. Such marks indicate qualities like kind, quality, quantity, value, geographical origin, or other characteristics of goods or services. Marks that have become common in the current language are also ineligible for registration unless they have acquired distinctiveness through prior use.
Relative Grounds for Refusal
Relative grounds are provided under Section 11 of the Trademark Act, 1999 which focuses on similarities with earlier trademarks. A trademark cannot be registered if it is identical or similar to an earlier trademark and relates to similar goods or services, leading to potential confusion. Additionally, registration is denied if the trademark is identical or similar to a well-known earlier trademark, even if it relates to dissimilar goods or services. Furthermore, registration may be refused if the use of the trademark in India is restricted by law.
Infringement of Trademark
Trademark infringement occurs when an individual, who is not the registered owner or authorized user in the course of trade, uses a mark that is identical or deceptively similar to a registered trademark. After infringement, the trademark owner has the option to pursue civil legal action against the infringing party. Essentially, trademark infringement involves the unauthorized use of a trademark on goods and services in a manner that may confuse or mislead consumers about the origin or potential benefits offered by the trader.
Legal Remedies Against Infringement of Trademark
Against trademark infringement, there are 2 types of remedies available to the trademark holder, which are discussed below:
Civil Remedies
Civil remedies for trademark infringement aim to compensate the trademark holder for losses incurred due to unauthorized use of his mark and to deter future violations. The most widely used civil remedy against trademark infringement is the interlocutory injunction against the unauthorized usage of the mark. In some severe cases, the trademark holder can seek monetary compensation for the infringement. There are two types of damages: actual damages and statutory damages. Actual damages are calculated based on the actual harm suffered by the trademark holder, such as lost profits or licensing fees. Statutory damages are predetermined amounts set by law and can be awarded without proof of actual harm, which makes it easier for trademark owners to seek compensation.
Criminal Remedies
Criminal remedies for trademark infringement are provided to deter and punish individuals or entities that violate trademark laws. These remedies serve to protect the exclusive rights of trademark owners. If someone commits a criminal offense related to infringement or passing off, they can face imprisonment ranging from six months to three years, along with a fine ranging from Rs 50,000/- to INR 2,00,000/-.
Conclusion
In conclusion, trademarks stand as crucial assets for businesses in today’s competitive commercial environment which makes this one of the important parts of Intellectual Property Rights. They not only differentiate a business’s identity from its competitors but also foster consumer trust and confidence. A trademark, whether comprising a name, logo, or unique design, serves as a symbol of recognition and quality assurance for consumers.
The Trademark Act of 1999 provides a comprehensive framework for the registration, protection, and enforcement of trademarks. This legislation ensures that trademark holders enjoy exclusive rights to their marks, granting legal protection against infringement. Moreover, it provides various types of trademarks, including service marks, collective marks, certification marks, and trade dress. The trademark holders are provided with civil and criminal remedies to combat such trademark infringement.