TRADE MARKS FILINGS
The history of trade mark legislation is more than a century old. The first legislation brought on the Statute Book was the India Merchandise Marks Act, 1889. This was followed by the Trade Marks Act, 1940. Both these Acts were repealed by the Trade & Merchandise Marks Act, 1958 which was replaced by the Trade Marks Act, 1999 to comply with the World Trade Organization’s TRIPS (Trade- related aspects of intellectual property rights) obligation.
Trade mark is to be used as a monopoly right by its proprietor in the course of his trade as an indication of the trade source or origin of the goods. Trademarks are a type of intellectual property.
Trade Mark- Intellectual Property
Intellectual property associated with Commercial activities (Industrial property) are also referred to as commercial intangibles they are categorized into two groups-
- Trade intangibles, such as patents, designs, and models;
- Marketing intangibles, such as trademarks and trade name.
Trade intangibles are basically concerned with the production of goods and provisions of services, e.g., Patent: while marketing intangibles are concerned with the promotion of sales, e.g., trademarks.
The salient features of the Trade Marks Act, 1999 are:
- The Act expanded the scope of the definition “Trade Mark” to include shape of goods, their packaging, and combination of colours, so long as the mark is capable of distinguishing the goods and services of one, from the goods and services of another. It was not possible to register these in the earlier law.
- The Act provides for protection of services marks as well; the 1958 Act, applied only to goods.
- The Act provides that a trade mark will not be registered if it is identical or similar to an earlier mark for similar goods. The similar goods may be in different classes.
- The Act provides that the period of duration of a valid registration is for a period of 10 years from the date of its registration. It may be renewed for any number of periods.
In India, the Trademark Act, 1999 permits you to register a trademark. It allows for exclusive ownership rights and prohibits others from using the mark, favoring the registered mark’s owner.
Once a trademark is registered, the “TM” symbol can be used with the applicant and the brand. To protect the brand name, trademark registration in India is essential. It is typically best to seek trademark registration under the supervision of a professional, as the process entails several steps and needs constant government follow-up.
Benefits of Getting Trademark Registration
There are numerous reasons to register a trademark, but the majority of them are required for all businesses and ambitious entrepreneurs because it serves as a valuable asset. Obtaining a trademark registration and utilizing the services has numerous advantages. Here are a few benefits.
- Intellectual Property Protection
- Powerful Deterrent
- Legal Remedies
Eligibility for Trademark Registration
Trademark registrations are prevalently used to protect unique brands, slogans, or invented terms. Individuals, corporations, and non-profit organization can all file for trademark registration in India. However, each class of person or entity has its own set of requirements when it comes to filing a trademark application. In India, the following are eligible for trademark registration.
An individual (Person)
An individual who is not doing any business can also obtain a trademark application and obtain trademark registration for a symbol or word that is proposed to be used by the applicant in the future.
The Joint owners of a company together can file for a trademark and both their names must be mentioned in the application.
A proprietorship firm may file a trademark application under its proprietor’s name but not under the business and proprietorship names. If you include a proprietorship name and a business name in your application, those details will be considered separately.
A partnership company must include all the names of the partners in the application while registering for a trademark, with a maximum of ten members. If a minor partner is present, the name of the minor’s guardian representing him must be mentioned.
Limited Liability Partnership/LLP
In the case of the Limited Liability Partnership, the application should be in the name of the LLP. It is an incorporated body where the partners have their own identity. The partners cannot be the applicant as the trademark belongs to the LLP.
Any Indian company, regardless of whether a private limited, limited, or any other form, must file a trademark application in the company’s name. It should be noted that any incorporated entity has its own identity, so a company’s director cannot be a trademark applicant.
If a foreign incorporated entity applies for a trademark in India, the application must be made in the corporate name as it is registered in the foreign country. The nature of the registration, the country, and the law should all be mentioned here.
Trust or Society
If a trademark application is filed on behalf of a trust or society, the managing trustee, chairman, or secretary who is representing the trust or society must be named.