Trademark registration in India is a legal proceeding before the registrar of trademarks. Trademark registration in India is necessary to protect the mark from infringement. One of the important features of current trademark Act is it allows registration of services marks. Service marks are associated with proprietors runs service businesses in India and around the world. |
Trademark must qualify following aspects to get registered in India. Registration of trademark is a legal right of any proprietor provided his trademark or service mark is in the ambit of following qualifications.
The selected trademark or service mark must be capable of distinguishing the product or service of the proprietor from the other proprietors. The trademark or service mark must not be similar to that of an existing or registered trademark in anywhere in the world. The claimed trademark or service mark must not constitute generic words. The word or symbol used in a trademark or service mark which is proposed for registration in India must be an inventive trademark.
Schedule IV of the Trademarks Act currently classifies the goods and services. The product of the proprietor is identified, and trademark in India is registered according to such similarity with class.
The registrar after admitting the trademark application publishes the same in the journal. Then the trademark or service mark is opened for opposition. If a person has any objection, he can raise it before the registrar within three months after the publication by serving a notice. Opposition grounds can be of following: -
• Mark is not distinctive - the proposed mark is similar to an existing mar. • Mark is a generic word – generic words are exempted from registration. Examples of generic words are name of places, common names, etc. The name sought to be registered is eligible for registration in India, if the proprietor can show that it has acquired a substantial distinction through its usage. • Direct reference to the character and quality of the goods • A geographical term which in its ordinary significance has come to be known for a particular kind of quality of goods • It comprises or contains scandalous or obscene matter or its use is prohibited under the Emblems and Names (Prevention and Improper Use) Act, 1950. • Its identity with the earlier trade mark and/ or similarity of the goods covered by the earlier mark.
Decision of the registrar can be appealed to the Intellectual property appellate board. A registered trademark or service mark has to be renewed after each ten years. Trademark registration is completed when the registrar certifies the trademark and enters the same in the trademark registry. Once a trademark or service mark is registered in India after each ten years the same must be renewed by paying a statutory fee. Non renewal of a mark is ground for removal of the mark from the registry. After obtaining the certificate the owner is entitled to use ® symbol along with the mark indicating that the mark is registered and unauthorized users are liable for infringement.
It is always desirable to approach a trademark attorney. The primary function of the trademark attorney is to identify such as words, symbol or any kind of trademark representation for his client. Other functions of a trademark attorney are providing advices regarding matters pertaining to trademark registration in India, selection of trademark, trademark similarity search, etc.
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