Trade Mark Registration in India

BRIEF BACKGROUND OF TRADEMARK REGISTRY

The Trade Marks Registry was established in India in 1940 and presently it administers the Trade Marks Act, 1999 and the rules thereunder. It acts as a resource and information centre and is a facilitator in matters relating to trade marks in the country. The objective of the Trade Marks Act, 1999 is to register trade marks applied for in the country and to provide for better protection of trade mark for goods and services and also to prevent fraudulent use of the mark. The main function of the Registry is to register trade marks which qualifies for registration under the Act and Rules.

 

DIFFERENCE BETWEEN WORD, LOGO and LOGO COMPOSITE MARK

Entrepreneurs are often confused by how they should protect their brands. For the answer to this, we only need to understand what a brand is. Simply put, it’s any physical representation of how your audience connects with your products and services. Brands, therefore, have trademarked everything from the colour of packaging (Cadbury’s) to the positioning of the label on jeans (Levi’s). You can trademark a word, logo, sound, graphic, color combination and even smell (find out how to trademark your brand). Usually, though, only very successful brands trademark anything besides their brand name, logo or a logo composite.

So let’s understand the difference between these three, usually called Word Mark, Logo Mark and Logo Composite Mark.

Word Mark

This simplest of the three, the word mark refers to the brand name. So if a brand – let’s say Reliance, Hero Motors or Parle – has trademarked only the word, it is known as a word mark. Most start-ups will only register their brand name within their class (a toy manufacturer would only file a trademark under Class 28). This means that even if there already is an existing business operating under the same name as the toy manufacturer but in another sector, the trademark would still be approved, unless the other business can prove that his customers are confused about ownership of the toy manufacturer’s brand. If this existing business, however, is a very large brand (McDonald’s, for example), there’s no chance the word mark would be approved even if the application is restricted to an industry McDonald’s is not into.

Logo Mark

If your logo is how your customers notice you, you would want to file a trademark for that logo. Brands whose logos are very recognisable – Nike, Mercedes, Apple – have all done so. The reason these brands have trademarked their logos is that they use them extensively, on their products, in advertising and all other interactions with customers. The three brands noted above, you’ll notice, don’t have their brand name within their logo.

Logo Composite Mark

Several brands get what is known as a logo composite mark, which incorporates the name of the brand into the logo. Prominent examples would be BMW and Coca-Cola. Levi’s has an elaborate logo composite mark, which includes even the position of its label on the back of its jeans.

Start-ups, however, tend to file a logo composite mark only when they’ve found that their brand has already been trademarked or is too similar to a registered brand name. While the registry could certainly raise an objection, these applications often get passed on the grounds that they are being represented by a distinct mark. That said, it’s generally a bad idea to use a brand name that isn’t entirely unique, as problems could arise should your brand pose a threat to the already registered brand name.

 

WHO CAN SIGN VARIOUS DOCUMENT UNDER TRADEMARK ACT, 1999 (REFERENCE OF SECTION 145 OF SAID ACT)

For Proprietorship

An application, notice or request must be signed by or on behalf of the person making the application.

Joint Applicant

If the application, notice or request is made by more than one person (as defined in section B of Chapter 1) and it is not signed by an agent on behalf of all the persons, the document must be signed by each person in whose name the application, notice or request is
made.

In Any Case of so Authorised By Applicant Through Vakaltnama or Power of Attorney

A legal practitioner or a registered trade mark agent or a person in the sole and regular employment of the principal can sign on behalf of a person making an application, notice or request.

Partnership Firm

A document on behalf of a partnership firm shall be signed by at least one partner stating that he is signing on behalf of the firm.

Body Corporate

A document on behalf of a body corporate shall be signed by a director or by the secretary or other principal officer of the body corporate and the capacity of the individual signing the document shall be stated below his signature.

 

Who can file a Trade Mark Application (Reference To Section 18(1) of Trademark Act, 1999

A person who claims to be the proprietor of the trademark in relation to goods and /or services may apply for the registration of a TradeMark. For the purpose of making an application of Trademarks, “Person” includes:

A Natural Person,
A Body Incorporate,
A Partnership Firm,
HUF, Association of Persons (in case of collective
Trademarks),
Joint Proprietor
A Trust,
A Society, or
A Government Authority/Undertaking

 

Jointly owned trademark :

When two or more persons who use a trademark independently or propose so to use it, as joint proprietors, they may apply for registration of a trade mark as joint proprietors. The circumstances under which two or more persons may apply for registration of a trade mark are set out
in Section 24 (2) of the Act.

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