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Trade Marks-Registration Process- Practise Notes
Seeks to explain the Trade Marks registration process in India and the proced...
IPR Study Material: NIFT/Gandhinagar
Procedure for Trademark Registration
A trade mark is a mean of identification of your goods. It is a symbol which a personwises in the course of trade, in order to that his goods may be distinguished by thepurchasing public from similar goods of other traders. Registration of a trade mark,under the trade and merchandise marks act, 1958, confers a statutory monopoly in theuse of that trade mark in relation to the goods for which it is registered and the owner has the right to sue in the courts of law for infringement of the trade mark.
SELECTION OF A TRADE MARK
Proper selection of the trade mark is necessary from business as well as legal point of view. From the general business point of view the trade mark shall be easy topronounce, remember, attractive and as far as possible short. From the legal point of view, the trade mark must fulfill all the requirements of the section 9, of the trade andmerchandise marks act, 1958, i.e. It should not be a personal name, surname,geographical name, name of a tribe /caste or refer to the character or quality of thegoods. It should also not be laudatory. A good trade mark should be an inherentlydistinctive trade mark, preferably be an invented or coined word. Nevertheless, theabove said trade mark may be registered if the same has been used for a continuousperiod of at lease 3 to 4 years. However, geographical names, loudatory words referringto the character and quality of the goods etc. Can never be registered.
HONEST CONCURRENT USER
If it is found that there is a resembling mark on the register (or any other previousapplication is pending w.r.t. Any similar mark, the trade mark may still be registered onproof of the honest and bonafide adoption of the trade mark, and sufficiently long andcontinuous user of your trade mark and the same shall be subject to the satisfaction of the registrar of trade marks. The period of honest and concurrent user is not defined inthe act, but to give you an idea and advise you, it is suggested that the trade mark musthave been used at least for a period of 5 to 6 years for qualifying for the registration onthe basis of the honest and current uses.
SEARCH OF TRADE MARK
If you are planning to start a new trade or industry, and want to get a trade markadopted and registered, unless you are quite sure that there is no identical mark on theregister, you are advised to go for official search of your trade mark from the office of theregistrar of trade marks, before filing of the application.
TRADE MARKAPPLICATION FILING REQUIREMENTS1. NAME OF THE APPLICANT :
CO.
2. ADDRESS :
REGISTERED OFFICE
3. NAME OF THE PROPRIETOR :
PARTNERS/ONE OF THE
Dr. Binaya Bhusan jena
IPR Study Material: NIFT/Gandhinagar
DIRECTORS OF THE APPLICANTCOMPANY, WITH FATHER’SNAME
4. COUNTRY/NATIONALITY :
OF THE APPLICANT
5. SINCE WHEN THE TRADE :
MARK HAS BEEN FIRST USED
6. NATURE OF GOODS :
MANUFACTURED & MARKETED
7. In case trade mark is depicted in stylished /logo /artistic manner copies /bromides of the trade mark , are to be pasted on the application.8. Power of attorney (tm-48/general power of attorney), duly signed by theapplicant or authorized representative / principal officer of the applicant. Where arepresentative signs the capacity of such representative shall be indicated. power of attorney can be filed subsequently also.PRIOR USE
It is not necessary to use a trade mark in india for filing an application for obtainingregistration .the application can be filed for a proposed trade mark, which the applicantintends to use in future.
CLASSIFICATION
The trade mark applications are filed as per the international classification of 34 classesof goods & services. Separate applications must be filed for different classes of goods,and /or different trade marks.
TRADE MARK APPLICATION NO.
After filing of the trade mark application, an application number is granted to theapplication, after about a period of two months, normally. This application no. Is of sixdigits .on the completion of the registration process this application no., becomes theregistration no. Of your trademark.
ISSUE OF EXAMINATION REPORT
After filing of the applicatin, and allotment of the application no., an examination reportof your trade mark application is issued by the office of the registrar of trade marks,bombay.the trade mark application is thoroughly examined by the registrar of trademarks. This examination does not only involve prior registered marks or pendingapplications, but the registrar also considers the registrability of the trade mark as such,taking in to consideration conditions laid down in the sec.9 and other provisions of thetrade and merchandise marks act, 1958,possible public confusion, reference to thecharacter and quality of the goods and public policy etc.
REMOVAL OF OBJECTIONS
After the issue of the examination report, the objections, if any, are removed by takinglegal grounds, tendering evidence (if available) and arguments etc.in case theobjections are not removed, an hearing is also demanded before the appropriate
Dr. Binaya Bhusan jena
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