Q.1 What is a trademark?
Ans: A trademark (popularly known as brand name) in layman’s language is a visual symbol which may be a word signature, name, device, label, numerals or combination of colours used by one undertaking on goods or services or other articles of commerce to distinguish it from other similar goods or services originating from a different undertaking. The legal requirements to register a trademark under the Act are:
- The selected mark should be capable of being represented graphically (that is in the paper form).
- It should be capable of distinguishing the goods or services of one undertaking from those of others.
- It should be used or proposed to be used mark in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services and some person have the right to use the mark with or without identity of that person.
Q.2.How to select a good trademark?
Ans: If it is a word it should be easy to speak, spell and remember. The best trademarks are invented words or coined words or unique geometrical designs.
Please avoid selection of a geographical name, common personal name or surname. No one can have monopoly right on it. Avoid adopting laudatory word or words that describe the quality of goods (such as best, perfect, super etc.)
It is advisable to conduct a market survey to ascertain if same/similar mark is used in market.
Q.3 Can we get multiple trademarks under one GST or business?
Ans. Yes! You can get as many trademarks as required under one GST or business as there is no relation between the two. However, you should note that each trademark application has to be filed separately and with separate registration fee for each application. Generally if you apply trandemark application in the name of Individual then fee is Rs.4500 and otherwise in business name its Rs.9000.
Q.4 What is the function of a trademark?
Ans: Under modern business condition a trademark performs four functions
- It identifies the goods / or services and its origin.
- It guarantees its unchanged quality
- It advertises the goods/services
- It creates an image for the goods/ services.
Q.5 What are different types of trademarks that may be registered in India?
- Any name (including personal or surname of the applicant or predecessor in business or the signature of the person), which is not unusual for trade to adopt as a mark.
- An invented word or any arbitrary dictionary word or words, not being directly descriptive of the character or quality of the goods/service.
- Letters or numerals or any combination thereof.
- The right to proprietorship of a trademark may be acquired by either registration under the Act or by use in relation to particular goods or service.
- Devices, including fancy devices or symbols
- Combination of colors or even a single color in combination with a word or device
- Shape of goods or their packaging
- Marks constituting a 3- dimensional sign.
- Sound marks when represented in conventional notation or described in words by being graphically represented.
Q.6 Is there a return to be filed for Trademarks?
Ans. No! Unlike under the GST regime or the Income Tax Act, 1961, there is no need to file any returns for your registered trademarks. It is solely to protect your business identity.
Q.7. What are the forms and government fees for major trademark transactions/registration ?
- For filing new applications prescribed forms is TM-A with Fees: Rs.4500/ Where the applicant is an Individual / Startup/Small Enterprise and In all other cases Rs.9000.
- To file a Notice of Opposition to oppose an application published in the Trade Marks Journal (FormTM-O). Fees: Rs. 2,700/- for each class covered
- For Renewal of a Regd. trademark (Form TM-R ). Fees: Rs.9,000/-
- Surcharge for belated renewal (Form TM-R).Fees: Rs. 5,000/-
- Restoration of removed mark (Form TM-R) Fees: 10,000/-
- Application for rectification of a registered trademark (Form TM-O) Fees: Rs. 2,700/-
Q.8 If I have a company registered, is its name protected from use by anyone else?
Ans. A registered company’s name is protected against use by any other company or LLP for their business, but a third party can still get a trademark registered in that name. But on the other hand, if you get a trademark for the name, the name can neither be used by a company, LLP nor any individual for any purpose under the class that you have registered. Therefore, protection by a trademark supersedes the protection of name by registering a company. Therefore we advice businesses to register trademark after registering a company.
Q.9 Can we get logo, name and tagline, all registered under a single Application?
Ans. No, you cannot get name, logo and tagline registered under a single application, all applications are treated in a different manner by the Registrar and separate applications are required. For example, brands like Toyota, LG, Samsung has its logo, name and tagline, registered in separate applications.
Q.10 Do we get trademark for lifetime?
Ans. No, trademarks are valid for 10 years. After the completing of 10 years, one can file application for its renewal and paying the renewal fee. If it is not renewed, it will be marked abandoned and will be available for anyone to use. Even after the death of owner of trademark, the same can be transferred to his legal heirs.
Q.11 Do we get worldwide protection after registering trademark in India?
Ans. No, trademark registrations are trerritorial in nature, which means they are valid only in the country of their registration. For protection in various countries, you need to file separate applications in all those countries.
Q.12 What is the difference between TM and R written with logo or names of the brands?
Ans. The symbols TM and R indicate the status of trademarks of a brand name or logo. The symbol TM indicates that the business is claiming ownership for the particular name or logo of the brand and has applied for the registration and is currently under process. Use of symbol TM does not guarantee that the person will get the trademark hence does not provide protection.
On the other hand, the symbol R is used when the business has successfully registered its brand name or logo and has received the Registration certificate. Use of the R symbol is regulated by law, and its use without having a registered trademark is a criminal offence.
- The ™ trademark symbol has no legal advantage or backing.
- The ® mark is legally protected and punishable in case of copied by someone else.
Q.13 What is the time frame for registering a trademark?
Ans. The process of getting a trademark registered takes 10-12 months approximately. One you have filed the application, it takes 4-5 months for the Registrar to examine the application and issue an examination report, after that 1 month is provided to reply to the examination report after which the application is published in the Trademark journal and is then open for oppositions by the public for 4 months, if no opposition is received, the Application gets registered. While if an opposition is received, 2 months’ time is given to the Applicant to file a Counter Statement after which the trademark gets registered on satisfaction of the Registrar.
Q.14 Do I require a DSC to file an application for trademark?
Ans. Yes, to file a trademark application, a DSC is required. In addition, the applicant also needs to create an account on the Trademark Registry. It is advisable to consult a trademark attorney who can help you with the trademark registration and hence you will not need to get a DSC.