A simple word, a combination of letters, numerals, or a sign can constitute a trademark. Indian trademark law defines a trademark 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 colors.”
A trademark distinguishes a product or service from any other of that sort in the market. An essential first step for any business is registering and protecting their trademark.
Any mark which could be a word, a sign, or a combination of both can be protected as a trademark. Color shades, when used as a distinguishing feature and other non-visible features such as sounds or even fragrances can be protected.
A lot of effort goes in while developing a well-curated product or a service. If not protected, with time, breach is inevitable. Trademark registration provides the protection needed against the forces posing a threat to the brand and its value.
An application for registration of a trademark is made in form TM-A, signed by the applicant or their agent. The application shall contain a sufficiently precise description of the trademark in words and shall be able to depict the same graphically. Such application, if not for a series of trademarks, shall be in respect of one trademark only.
Unless the trademark is proposed to be used, the application shall contain the time it has been in use and the details of the user.
After the submission of the application, the registrar examines it, and a search is conducted for same or deceptively similar marks. On consideration of the application, the registrar may require evidence of use or of distinctiveness to be submitted by the applicant. The trademark office reviews the application for compliance with the Trademarks Act, 1999 and the respective Rules.
After the review of the application is done and the evidence provided is considered, if the registrar has any objection to the acceptance of the application or proposes to accept it with certain conditions or modifications, an examination report is sent to the applicant communicating such acceptance or proposal.
The applicant is required to respond to this report within one month. The registrar shall provide an opportunity for a hearing if requested by the applicant. A hearing may also be held if the response to the report is not satisfactory.
Before or after acceptance of the application but before the registration of the trademark, the application may be amended by applying in form TM-M along with the prescribed fee.
Once accepted, the trademark is advertised as accepted in the trademark journal.
Any person may object to the registration of the mark by filing a notice of opposition. A notice of opposition may be filed by any person within 4 months of the publication of the trademark journal in which the application was advertised. Once a notice is received, the applicant is required to file a counterstatement and then both the parties provide evidence when called upon.
After the closure of evidence, the registrar gives notice to the parties of the date of hearing wherein the written arguments, if submitted by any party, are considered and the decision is communicated to the parties in writing.
Where no opposition is filed within the time provided for the same or the opposition is filed and dismissed, the trademark is entered in the register. A certificate of registration is issued by the registrar bearing the seal of the Trademarks Registry.
An application for renewal of registration of a trademark can be filed not more than 1 year before the expiry of the previous registration.
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