A trademark or popularly known as “brand name” in layman’s terms is a visual symbol which could be a word signature, name, device, label, numerals or combination of colors or alphanumeric used by a person’s enterprise on goods or services or other articles of commerce to differentiate and make it stand out distinctively from other similar goods or services originating from a different enterprise.
Types of trademarks that can 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 arbitrary dictionary word or words.
• Letters or numerals or any combination.
• 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 3-D sign.
• Sound marks when represented in conventional notation or described in words by being graphically represented.
Function of a trademark
Under modern business condition a trademark performs four functions
1. Identifies the goods / or services and its origin.
2. Guarantees its unchanged quality
3. Advertises the goods/services
4. Creates an image for the goods/ services.
Any person, claiming to be the proprietor of a trademark used or proposed to be used by him, may apply in writing in prescribed manner for registration. The application (in English or Hindi) should contain the trademark, the goods/services, name and address of applicant and agent (if any) with power of attorney, the period of use of the mark along with following conditions:
• The selected mark or symbol should be capable of being represented graphically on a paper.
• It should be able to differentiate and capable of distinguishing the goods or services of one undertaking from other similar ones.
• It should be used or proposed to be used mark in relation to goods or services for the purpose of indicating a connection 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.
Selecting a Trademark
While choosing a trademark that is a word it should be easy to speak, spell and remember. The best trademarks are invented words or made up by combining different words together or unique geometrical designs.
Selection of a geographical name, common personal name or surname should be avoided as much as possible. Avoid adopting laudatory or superlative word or words (such as best, perfect, super etc.) that describe the quality of goods. Conducting a market survey is advised to make sure if same/similar mark is used in market.
Benefits of registering a trademark
The registration of a trademark gives upon the owner the exclusive right to the use the trademark in relation to the goods or services in respect of which the mark is registered and to indicate so by using the symbol ‘®’ and seek the relief of violation in appropriate courts in the country. The exclusive right is however subject to any conditions entered on the register such as limitation of area of use etc. Also, where two or more persons have registered identical or nearly similar marks due to special circumstances, such exclusive right does not operate against each other.
A registered trademark can be removed from the register on application to the Registrar on prescribed form on the ground that the mark is wrongly remaining on the register. The Registrar also can on its own motion issue Notice for removal of a registered trademark.