Intellactual Property Rights

Meaning Of A Trademark
A trademark popularly known as brand name, is an identification symbol which may be a word, a device, a label or numeral etc. or a combination thereof used in the course of trade to enable the purchasing public to distinguish one trader’s goods from similar goods or other traders.
Are All Trademarks Registrable?
No. It is not possible to register a trademark, which is confusable with a trademark of another trader who has been using it earlier for the same goods or a trademark, which describes the character or quality of the goods that other traders may reasonably want to use in the course of their business. The mark already registered or pending registration in respect of similar goods. In addition, some trademarks are prohibited from registration under the directions of the Government.
What Rights Do Registration Of The Mark Bring?
The exclusive right to use the trademark in relation to the goods for which it is registered and the right to take legal action against other who may infringe the registered trademark or one resembling it in relation to similar goods.
How Is Registration Obtained In India?
By filing an application in the prescribed form with fees in one of the five offices of the Trade Mark Registry located at Bombay, Madras, Delhi, Kolkata and Ahmedabad, depending on the place where the applicant resides or has his principal place of business. The application is examined to ascertain whether it is distinctive and does not conflict with existing registered or pending trademarks and examination report issued. If it is accepted and advertised in the Trade Marks Journal to allow other to opposition or if the opposition is decided in favor of the applicant then the mark is registered and a certificate of registration is issued.
How Long Does It Take?
At present on an average, it takes about 3 years from the date of filing the application. It is planned to reduce the time through computerization of the offices of the Trade Mark Registry.
How Long Can A Registered Trademark Be Kept In Force?
Indefinitely, but renewal fees have to be paid for renewing for successive period of 10 years from the date of application.
Does A Trademark Have To Be In Use Before It Is Registered?
No. It is possible to register a trademark, which is proposed to be used.
Can A Trademark Be Removed From The Register Because Of Its Not In Use After Registration?
Yes, if the trademark, which has been registered has not been used for a continuous period of 5 years and one month. Then it can be removed on an application made by a person who is affected.
Does Registration In India Give Protection Abroad?
No. It will be necessary to apply for registration separately in each of those countries where registration is required.
Is Registration Of A Trade Mark Compulsory?
No. Registration of a trademark is not compulsory, but without registration, the owner of a trademark cannot bring an action for infringement to protect his mark if it is used by others. Suing for infringement of a registered trade mark is much simple than launching a common law action for passing off to protect an unregistered trade mark in that the owner of a registered trade mark can base his case simply upon the fact that his mark has been registered.
Safeguards To Be Taken By The Owner Of A Registered Trademark To Protect His Rights :
He should use and renew the trade mark regularly and in time
If his trade mark is copied by other he should file a suit for infringement and passing off and also take criminal action
He should keep a watch in respect of trademarks advertised in the Trade Marks Journal and institute opposition proceedings if identical or deceptively similar trademarks are published
He should initiate rectification proceedings if an identical or deceptively similar trade mark is registered
Documents/ Information Required For Filing An Application :
2 specimen of the device, but not necessary in the case of word per se.
Documentary proof of first sale in respect of goods in India, if any
General Power of Attorney given to us in India duly signed by the proprietor, partner or one of the Directors of the company in the case may be
Literature, packaging materials or any advertising substances of the product for which sought for registration, if any A copy of Memorandum & Articles of Association or copy of Partnership Deed as the case may be
First of all we have to take search of your Trade Mark from AHMEDABAD/MUMBAI office. Search means it is possible that any other person may /might be using your trade mark prior to the use by your esteemed organization or we have to check (search) whether any other person has applied for registration. Please note that if your esteemed organization is using your trade mark for last 5 to 6 years then possibility of registration may be certain under common law and trade Marks law.
Search of trade mark is not compulsory under the provision of Trade Marks Act, 1999, but it is advisable for safety purpose.
We have to file trade mark application before the registrar of Trade Mark in Trade Mark department.
Within 15 days of filing of trade mark application (as per present position in Trade Mark department) we will receive Trade Mark number from Trade Marks department duly signed by the registrar of Trade Marks.
Within one (1) month of filing of trade mark application (as per present position in Trade Marks department) we will receive examination report from Trade Marks department. In examination report the registrar of trade marks will verify (examine) the application as per the provision of Trade Marks Act, 1999.
We have to reply the examination report and solve the objection raised by the registrar of Trade Marks. Moreover, we have to file documentary evidence of use of trade mark in form of affidavit.
Then after matter (i.e. our application) may be fixed for hearing and we have to argue the matter on our merit. In hearing the registrar will decide whether to grant registration or not.
Then after, our trade mark will be advertised in Trade Mark Journal. Trade Mark Journal is a magazine published by Central Government i.e. Trade marks department. Within 4 months, from the date of publication, if any person has any objection, such person can file notice of opposition against your trade mark. If any opposition is filed then opposition proceedings will start. It is very difficult to let you know the sections and Rules of opposition, as your good self is unknown in this field. We will let you know the same if required, If there is no objection within 4 months then you will receive registration certificate.
It is very difficult to let your good self understand the opposition proceedings. Moreover, opposition proceedings depend on circumstances of each and every case. Please note that fees for opposition proceedings is separate & depends on circumstances of each and every case. We will let you know the opposition proceedings as & when you come to us. But in brief we let you know that after hearing both the parties registrar of Trade Mark shall pass order/Judgement whether to register the mark or not.
On completion of aforementioned stages you will get registration certificate that shall be final.
As per new Trade Marks Act, 1999 your esteemed organization has to renew the trade marks every 10 years. This is for your kind information

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