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A trademark, trade mark, or trade-mark[1] is a distinctive sign or indicator, used by an individual, business organization, or other legal entity, to identify

that the products or services with which the trademark appears originate from a unique source, and to distinguish its products or services from those of other entities. A trademark may be designated by the following symbols:

(for an unregistered trade mark, that is, a mark used to promote or brand goods) (for an unregistered service mark, that is, a mark used to promote or brand services) (for a registered trademark or service mark)

A trademark is typically a name, word, phrase, logo, symbol, design, image, or a combination of these elements.[2] There is also a range of non-conventional trademarks comprising marks which do not fall into these standard categories, such as those based on color, smell, or sound. The owner of a registered trademark may commence legal proceedings for trademark infringement to prevent unauthorized use of that trademark. However, in some countries unregistered rights in a sign may also be enforced. These are often known as 'common law' rights. An unregistered sign is usually only protected within the geographical area within which it has been used or in geographical areas into which it may be reasonably expected to expand. The term trademark is also used informally to refer to any distinguishing attribute by which an individual is readily identified, such as the well-known characteristics of celebrities. When a trademark is used in relation to services rather than products, it may sometimes be called a service mark, Terms such as "mark", "brand" and "logo" are sometimes used interchangeably with "trademark". "Trademark", however, also includes any device, brand, label, name, signature, word, letter, numerical, shape of goods, packaging, colour or combination of colours, smell, sound, movement or any combination thereof which is capable of distinguishing goods and services of one business from those of others. It must be capable of graphical representation and must be applied to goods or services for which it is registered.

Specialized types of trademark include certification marks, collective trademarks and defensive trademarks. A trademark which is popularly used to describe a product or service (rather than to distinguish the product or services from those of third parties) is sometimes known as a genericized trademark. If such a mark becomes synonymous with that product or service to the extent that the trademark owner can no longer enforce its proprietary rights, the mark becomes generic.

Fundamental concepts
The essential function of a trademark is to exclusively identify the commercial source or origin of products or services, such that a trademark, properly called, indicates source or serves as a badge of origin. In other words, trademarks serve to identify a particular business as the source of goods or services. The use of a trademark in this way is known as trademark use. Certain exclusive rights attach to a registered mark, which can be enforced by way of an action for trademark infringement, while in some countries unregistered trademark rights can be enforced pursuant to the common law tort of passing off. It should be noted that trademark rights generally arise out of the use or to maintain exclusive rights over that sign in relation to certain products or services, assuming there are no other trademark objections.

Advantages/Benefits of Trademark Registration


Trademarks benefit both businesses and consumers. Trademarks allow businesses to build an identity and reputation with customers, and thereby grow or expand their business. They allow consumers to take an informed buying decision by searching out familiar brand names and avoid bad buying experiences by avoiding the brands they didn't like.

1. Confers upon the owner the exclusive right to use the brand. 2. Protects hard earned goodwill in the business. 3. Protects your Name / Brand Name from being used in a same or similar fashion, by any other business firm, thus discourages others from cashing on your long built goodwill. 4. Gives your products a status of Branded Goods. 5. To obtain legal relief in respect of infringement (misuse by others) of the trade mark. 6. Power to assign (transfer) the trade mark to others for consideration.

Procedure/Steps for Online Trademark Registration


1. Trademark Search: It is advisable to conduct a trademark search for the relevant classes before filing the application to register a trademark in order to make sure that there is no identical or similar trademark already registered or for which an application for registration has been submitted. 2. Filing of an application for registration by a person claiming to be the proprietor of a trademark, in the office of the Trade mark Registry, within the territorial limits of the place of business in India. 3. Examination of the application by the Registrar to ascertain whether it is distinctive and does not conflict with existing registered or pending trademarks and examination report is issued. 4. Publication of the application after or before acceptance of the application in the Trademark Journal.

5. Opposition by third party: After publication if any person gives notice of his/her opposition to the registration within three months which may be extended to the maximum of one month. 6. Hearing before Registrar: If the opposition has been decided in favour of the applicant of the registration of trademark, the Registrar shall register the Trademark. 7. Registration of Trademark: On the registration of the Trademark the Registrar shall issue to the applicant a Trademark Registration Certificate.

Use of the TM, SM and symbols


TM Symbol: Generally, one who has filed an application (pending registration) can use theTM (Trademark) symbol with the mark to inform the public of his exclusive claim over the Brand. The claim may or may not be valid. SM Symbol: An SM symbol indicates Service Mark, which is the same as a Trademark except that it identifies and distinguishes the source of a service rather than a product. R Symbol: The registration symbol may only be used when the mark is registered and the Certificate of Registration is issued by the Trademark Registrar. Out of all above symbols TM symbol is one of the most popular and widely used symbol to indicate the application or registration of Trademark. Tips On Trademarks Management A trademark is much like that of a human being because the life of a trademark may be correlated to the life of a human being. Every human being is to be named immediately after birth in this earth and on the same line every product is to be identified with a trademark. Hence there is need to nurture trademarks like human beings. Trademark is a major asset of any company. Hence ' trademarks management ' in an enterprise comprises two aspects:

1. Trademark Policy 2. Trademark Protection Trademark policy is a marketing function. Normally the marketing personnel of an organization will take care of this trademark policy letter known as ' Brand Management '. Trademark protection is a legal function .In small enterprises one of the tasks of the legal department is to assure the protection of company's trademarks. In large enterprises there is need to create a specific department known as ' Trademarks department' which will look after the ' Trademarks Management '. Since trademark protection is a legal function, the trade marks department best assure its role when it is integrated in the legal function of an organization. The principal duty of the Trademarks Department is to protect and administer the trademark of the company i.e. by getting registration under the relevant laws of a particular country, the country of registration, the list and classes of goods and the services covered , renewals, action against the infringes and dishonest users and so on. The trademarks department has an additional task in advising the marketing personnel in the choice of new trademarks, their protect ability and their availability, and also in the legal aspects of trademark policy. The Trademarks Department may also be entrusted with the task to managing the licensing of trademarks, drafting license agreements and permitted user agreement for use of trademarks and also to look after other areas of Intellectual Property such as Patents, Designs, Copyrights and technical know how. Functions of the trade marks department for proper trademarks department for proper trademark management. 1) Advise the marketing department with regard to the choice of a new trademark. 2) Legal clearance of a new trade mark by conducting searches in the Trademarks Registry and also in the market places with regard to the availability of identical or similar marks in respect of similar goods and services.

3) Submit trademark applications and advise the company to go for registration in a country where the goods are to be exported or sold. 4) Since there is globalization of industry and trade, it is better to seek International protection of the trademarks and other Intellectual Property. 5) Advise the company for proper use of trademarks after obtaining registration in order to avoid the attack on the registered trademarks on the ground of nonuse by business competitors. 6) Initiate legal action against the infringes by filing civil suits or criminal complaint against the infringes and dishonest traders. 7) To conduct search and raid the premises when the infringed or spurious goods are being manufactured or marketed with the help of local police personnel after lodging criminal complaint. 8) To maintain individual files for each and every trademark of the company for easy reference. 9) It is better to computerize the Trademarks Department by creating a software for this kind of ' Trademarks Management '. If the creation of trademark department is not economical one of trademark department is not economical one for any type of organization, then it is better to entrust this task to a Trademark Attorney who should be properly instructed to maintain all particulars and papers with regard to trademarks either on retainer or work-to-work basis. The types of trademarks that can be registered 1. Trademark protection is available for words, names, symbols, or devices that are capable of distinguishing the owner's goods from the goods of others. 2. A trademark that merely describes a class of goods rather than distinguishing the trademark owner's goods from goods provided by others cannot be registered. 3. Trademarks are not registered if: The use of the mark is likely to deceive or cause confusion;

The use of the mark is contrary to any law or is disentitled to protection in any court of law; The mark contains scandalous or obscene matter; The mark contains any matter that is likely to hurt the religious sentiments of any section of the citizens of India; The mark is identical or deceptively similar to a trademark already registered in respect of the same goods or goods of the same description; The use of the mark is prohibited under The Emblems and Names (Pre

Procedure for registration of trade marks

Any person/entity who claims to be the proprietor of a trademark can apply for registration. Before applying for registration, the applicant may apply for a report from the Registrar of Trademarks, as to whether the mark or one similar to it has already been registered or applied for. The applicant can also conduct private searches using the records maintained in the Registry. Thereafter, the application for registration should be filed After the application is received, the Registrar of Trademarks will examine the same and communicate any objections to the applicant. The objections normally are with regard to distinctiveness and similarity with already registered trademarks. The applicant can put forward his case in writing or at a hearing. If the submissions of the applicant are accepted, the application will be advertised in the Trademarks Journal. In case any objections are received, the Registrar will conduct a hearing and give a decision regarding the same. If no objections are received, the Registrar will enter the mark in the Register of Trademarks and issue a certificate of registration to the applicant. The certificate of registration is valid from the date of application for registration.

Various Grounds for refusal: Absolute grounds: Section 9 of the Trademarks Act, 1999 sets out the absolute grounds for refusal of trademarks, which can be grouped under following heads: a) Trademark is devoid of distinctive character; b) Trademarks that are descriptive; c) Trademarks likely to deceive of cause confusion; d) Trademarks or signs that are customary in current language and in the bonafide and established and customary practice of the trade; e) Trademarks comprising scandalous or obscene matter or likely to hurt religious susceptibilities in India; f) Trademarks consisting of shape which are purely functional or are necessary to obtain a technical result or give substantial value to the goods; or g) Trademarks whose use is prohibited under Emblems and Names (Prevention of Improper Use) Act, 1950. Prohibition: Section 13 of the Trademarks Act, 1999 prohibits registration of any word as trademark which is: a) Commonly used and accepted name of any chemical element or any chemical compound (as distinguished from mixtures) in respect of a chemical substance or preparation; or b) Declared by the World Health Organization and notified as such by the Registrar, as an International non-proprietary names. Relative grounds of refusal: Section 11 of the Trademarks Act, 1999 sets out the relative grounds for refusal of trademarks, which can be grouped under following heads: a) identical or similar to a previous mark with and/or without similar or identical

goods; b) Prohibition of use of the trademark under passing off or law of copyright; Statutory defense available under the Act: For registration: a) Honest concurrent use; b) Acquiescence; or c) Prior user

Renewal of registration. The trademarks can be renewed perpetually, are renewable for a period of 10 years on payment of prescribed fees. Assignment of trademark A trademark is recognised as a form of property. It is therefore assignable and transferable as in the case of other forms of property. Assignment of trademark can be made by making a request on form TM-23/24 along with the deed of assignment etc to the trademark registry. An unregistered trademark can be assigned without the goodwill of the business under the following circumstances: At the same of assignment it is used in the same business as a registered trademark; That both the registered and unregistered trademarks are assigned at the time and to the same person; and That the goods in respect of which the assignment is effected are the same for both the marks.

Infringement of a trademark A registered trademark is infringed if a person uses the same/deceptively similar mark in the course of trade, in respect to the same goods. The test for deceptive similarity is whether the defendant's use of a mark is likely to cause confusion, i.e., whether an appreciable number of reasonably prudent consumers are likely to be confused or deceived as to the source, affiliation or sponsorship of the parties and their goods and services. Reliefs that the court may grant in an infringement suit are:

Injunction, restraining the further use of the trademark; Damages or an account of profits; and An order for delivery of the infringing labels and marks for destruction.

Service marks Service marks are marks used by people rendering various kinds of services, for eg: travel agents, finance companies, consultants etc. At present there is no provision for the registration of service marks in India, and they can only be protected by an action for passing off.

TRADEMARK LAW IN INDIA LEGISLATION (INDIA TRADEMARK LAW) The Indian law of trademarks is enshrined the new Trade Marks Act, 1999 came into force with effect from September 15, 2003. The old Trade and Merchandise Marks Act, 1958 was repealed at the same time. The new Trademarks Act of 1999 is in line with the WTO recommendations and is in conformity with the TRIPS Agreement to which India is a signatory. MAIN FEATURES OF NEW LEGISLATION IN INDIA Under the new Trademarks Act of 1999:

Registration of Service Marks allowed in addition to Trademarks for goods. No separate application necessary for each category/class of goods or services; a single application would do, however filing fee will be charged separately for each class of goods/services. The term of registration of trademark is ten years, subject to renewal thereafter. The system of maintaining registration of trademark in Part A and Part B with different legal rights, dispensed away. Registration of trademarks which are imitations of well known trademarks not permitted. Registration of Collective Marks owned by associations allowed. Offences relating to trademark made cognizable. Filing Fees enhanced by more than 8 times. Extension of application of convention countries.