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Trade Marks / Service Mark

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What is a Trade Mark ?


          A trade mark popularly known as brand name, is an identification symbol which may be a word, a device, a label or numeral etc. or a combination thereof used in the course of trade to enable the purchasing public to distinguish one trader’s goods from similar goods or other traders.


What is a Service Mark ?


It is the same sort of mark as trade mark but applies to services rather than goods.


Are all Trade Marks registrable ?


No. It is not possible to register a trade mark which is confusable with a trade mark of another trader who has been using the trade mark earlier for the same goods or a trade mark which describes the character or quality of the goods which other traders may reasonably want to use in the course of their business. The mark already registered or pending registration in recpect of similar goods. Also some marks are prohibited from registration under the directions of the Government.


What rights do registration of the mark bring ?


The exclusive right to use the trade mark in relation to the goods for which it is registered and the right to take legal action against other who may infringe the registered  trade mark or one resembling it in relation to similar goods.


How is registration obtained in India ?


By filing an application  in the prescribed form with fees in one of the five office of the Trade Mark Registry located at Bombay, Madras, Delhi, Kolkata and Ahmedabad depending on the place where the applicant resides or has his principal place of business. The application is examined to ascertain whether it is distinctive and does not conflict with existing registered or pending trade marks and examination report issued. If it is accepted and advertised in the Trade Marks Journal to allow other to opposition or if the opposition is decided in favour of the applicant then the mark is registered and a certificate of registration is issued.



How long does it take ?


At present on an average it takes about 1and 1/2 years from the date of filing the application. It is planned to reduce the time through Computerisation of the offices of the Trade Mark Registry.


How long can a registered Trade Mark be kept in force ?


Indefinitely, but renewal fees have to be paid for renewing for successive period of 10 years from the date of application.


Does a Trade Mark have to be in use before it is registered ?


No. It is possible to register a  trade mark which is proposed to be used.


Can a trade mark be removed from the Register because of its not in use after registration ?


Yes. If the trade mark which has been registered has not been used for a continuous period of 5 years and one month. Then it can be removed on an application made by a person who is affected.


Does registration in India give protection abroad ?


No. It will be necessary to apply for registration separately in each of those countries where registration is required.


Is Registration of a trade mark compulsory ?


No. Registration of a trade mark is not compulsory, but without registration the owner of a trade mark cannot bring an action  for infringement to protect his mark if it is used by others. Suing for infringement of a registered trade mark is much simple than launching a common law action for passing off to protect an unregistered trade mark in that the owner of a registered trade mark can base his case simply upon the fact that his mark has been registered.


Safeguards to be taken by the owner of a registered trade mark to protect his rights.


A.     He should use and renew the trade mark regularly and in time.


B.     If his trade mark is copied by other he should file a suit for infringement and passing off and also take criminal action.


C.     He should keep a watch in respect of trade marks advertised in the Trade Marks Journal and institute opposition proceedings if identical or deceptively similar trade marks are published.


D.    He should initiate rectification proceedings if an identical or deceptively similar trade mark is registered.



Documents Required


1)      30 specimen of the device, but not necessary in the case of word per se.


2)      Documentary proof of first sale in respect of goods in India, if any.


3)      General Power of Attorney given to us in India duly signed by the proprietor, partner or one of the Directors of the company in the case may be as per draft annexed herewith.


4)      Literature, packaging materials or any advertising substances of the product for which sought for registration, if any.


5)      A copy of Memorandum & Articles of Association or copy of Partnership Deed as the case may be.


NOTE: All documents must be submitted in English language only.


Information Required


Name(s), age and address(es) and nationality(ies) of the Applicant whether they are partners or Directors.


Name, address, designation and nationality of whose signature has to be obtained on  General Power of Attorney


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