What is a trademark?
The Trademarks Act of 1999 defines the term ‘trade mark’ as a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours. A trademark gives a business a unique identity and consumers recognise the company and the brand just by looking at the trademark. Notable examples of a trademark are Nike’s swoosh and the orange ‘i’ shaped logo of ICICI Bank.
Should start-ups or SME’s register their trademarks?
Budding entrepreneurs in our country have brought a lot of innovation into the market. However, we also have many similar companies providing similar products or services. In such a competitive environment, how does a trademark help a start-up or an SME?
Legal implications of a trademark:
Registration of a trademark is not mandatory in India, but it is recommended. Every country has its own system of the trademarking. Therefore, a brand name, logo or patent is only valid within a country. If a company decides to do business in multiple countries, they need to register individually in every country where they operate. Many companies going global have faced issues with trademarks in different countries. One of the most famous trademark-related cases occurred in China where a leather bags manufacturer registered the trademark named ‘IPHONE’ much before Apple’s iPhone became famous all over the world. Apple lost the case in China as the leather bags manufacturer had registered their name as a trademark much earlier.
Benefits of having a trademark:
There are several benefits of having a trademark. The trademark represents the company or entity nationwide or even world-wide by using the ‘Registered Symbol’. Few other benefits are listed below:
- A trademark sets you apart from your competitors.
- It makes it easy for customers to find you.
- It allows a business to use the social media in an effective manner.
- The value of a registered trademark increases with time.
Implications of going ahead without a trademark:
Burger King, the US-based fast food restaurant chain had registered their trademark in Indian in 1979. However, they didn’t have any of their outlets in India. A restaurant named ‘Burger King’ was opened in Pune in 1992 and the restaurant owner was served a notice by the US-based food chain. If the Pune-based restaurant owner had tried registering the restaurant name as a trademark, s/he would have realised that there’s a similar name already registered and could have avoided the legal notices. Therefore, registering a trademark can prove to beneficial to a company in the long run.
The International Trademark System:
India has now joined the International trademark system. The Trade Marks (Amendment) Act, 2010 allows companies to register their trademark in 87 countries with a single application at any of the offices in India. This is done by the Madrid system and is administered by the International Bureau of the World Intellectual Property Organization (WIPO).
How to get a trademark registered?
The procedure of trademark registration in India and the different stages for registering a trademark are described below:
- Search for the trademark: It is important to check if similar trademarks are registered. It is recommended to do both – an online and an offline search. The online search can be done at http://ipindiaonline.gov.in/tmrpublicsearch/frmmain.aspx.
- Fill the application and pay the requisite fee: Based on the search, a trademark attorney has to draft an application. An online application can be filed at http://ipindiaonline.gov.in/trademarkefiling/user/frmlogin.aspx. You can start using the ‘tm’ sign as soon as you file for the application. The details of the fees are given on the website of the Officer of Registrar of Trademarks. (http://www.ipindia.nic.in/form-and-fees-tm.htm)
- Registration of trademark: Once a trademark is found unique, it will be advertised in the Trademarks Journal. If no objection is raised for 4 months, the trademark right will be registered under your name.
The following documents are required for registering a trademark.
- Logo or the trademark copy
- The details of the applicants like name, address, nationality.
- The State of Incorporation in case of a company
- The first use of trademark date, if used before applying
- The power of attorney signed by the applicant on Rs. 100 stamp paper
Every small asset of the company can be trademarked. It includes even non-traditional trademarks like the ‘sound’ of a software, the ‘jingle’ used in advertisements (Airtel tune, for example), flavour of a medicine from a pharma company or a colour code of the logo (Google’s ‘G’ has a particular pattern of colours). Trademarks also have goodwill attached to them and can be monetised during mergers and acquisitions.