Trademark Law in India
- India
- 10/18/2007
The Law applicable in India regarding Trademarks is “The Trade Marks Act, 1999”, which was passed by the Parliament in 1999 and the Trade Marks Rules, 2002 were notified on February 26, 2002. The salient features of the new Act are: Providing for registration of Trade Marks for services in addition to goods, Protection of well-known trade marks, Provisions of single register, Provision for registration of collective marks,
Provisions for an Appellate Board for speedy disposal of appeals and for rectification applications,
Simplification of procedures for registration. Once the trademark get registered in a particular classification for particular goods and the Trademark Owner is using the same in respect of the said goods on commercial Scale, the said trademark owner can get relief against the persons who are even using the similar/deceptively similar mark in respect of different set of goods and or in relation to their trade name or trading style.
The offence under the Trademark Act, 1999 has now been made cognizable and wide powers have been given to the police to seize infringing goods. At the same time the power of the Courts to grant ex parte injunctions have been enhanced. Section 134(2) has been inserted in the New Act, accordingly to which the jurisdiction of court of laws can be envoked where plaintiff resides or carrying on its business.
What is Trademark
The mark is defined in Section 2(1)(m) of the Trademark Act, 1999. The mark includes a device, brand, heading, label, ticket, name, signatures, word, letter, numeral, shape of goods, packaging or combination of colour or any combination thereof. A trademark is an indication of origin from where the goods are being manufactured and marketed. Nowadays, the trademark becomes essential part of the business. In fact, one cannot think of development of his business without having reorganization of its goods or services with a particular mark or name. Hence, the trade/service mark has become valuable business asset.
Registerbility of Trademark/Service Mark in India
The trademark/Service mark which is having at least one or more essential features as stated below can be qualified as registered:
The name of a company, individual or firm represented in a special or particular manner;
The applied for should not consist exclusively of marks or inductions which may serve in trademark to designate the kind, quality, quantity, intended purpose, values, geographical origin or the time of production of the goods or rendering of the service or other characteristic of the goods of services or the name of a sect, caste or tribe in India;
The signature of the applicant for registration or some predecessor in his/her business;
One or more words or mark subject to not being violating any law enforce in India.
The mark to be applied should not similar with an earlier trademark and similarity of goods or service with earlier trademark. The earlier trademark can be registered or pending.
In nutshell, all the trademark and service marks could be registered in India subject to not being in contravention of provision of Trademark Act, 1999 particularly Section 9, 11, 12, 13 and 18 of the Act.
Procedure and requirments for registration of a Trademark/Service Mark in India
Filing of Application
1. Application is to be made before The Registrar of Trademarks in prescribed manner alongiwth official fee.
2. The Applicant to register a trademark or service be contain the complete name, address, status and address of service in India.
3. Application can be made in one class or multiple classes for a single mark
4. Every application for the registration of a trade/ service mark shall be in respect of goods comprised in one class only of the Fourth Schedule of the Trademark Rules 2002.However, if any goods are not specified in any of the classifications, in such case the Registrar in his own discretion shall determine the classification of those goods.
5. An application to register a trade mark shall, unless the trade mark is proposed to be used, contain a statement of the period of user.
6. The application to the Registrar for the registration of a trademark shall be signed by the applicant or his agent.
7. Incase of the application is filed through an agent, a power of attorney in his/her favour be submitted alongwith application.
8. Where a trade mark contains a word or words in a language other than Hindi or English, the Registrar may ask for an exact translation thereof together with the name of the language
9. The applicant from the earliest corresponding application in a Convention country can claim priority provided that application is filed in India within six months of the priority date. Multiple and partial priorities are allowed.
Steps and Procedure after filing
- Filing of application
- Allotment of Trademark Number.
- Issuance of Examination Report under Section 9,11,12 and 18 of the Act.
- Reply to Examination Reports.
- Hearing and evidence, if directed.
- If Accepted, advertised in the Trademark Journal.
- If no opposition within prescribed time, issuance of Registration Certificate. Trademark is registered, is valid for the period of 10 years from the date of application and can be renewed from time to time by paying prescribed official fee.
- If opposition filed by third party, opposition proceedings.
