How to register a Trademark in India
By Arjun Kant
Trade mark shall be capable of being represented graphically and capable of distinguishing the goods and services of one person from those of others. A Trademark (TM) in India includes: Word or letter, device, brand, logo, slogan, label, ticket, name, signature, three dimensional shapes, numeral, shape of goods, packaging or combination of colours, sound mark.
The marks which are not registrable in India are
1)A mark by its very nature will deceive the public or cause confusion
2)A mark which is likely to hurt the religious susceptibilities of any section of the people of India.
3)A mark which contains scandalous or obscene material
4)A mark the use of which is prohibited under the Emblems and Names Act.
5)The shape of goods which are purely functional or necessary to obtain technical result or which gives substantial value to goods.
6)Chemical names and international non-proprietary names(generic name given to a pharmaceutical substance)
Best marks are invented words, non-descriptive words and distinctive devices. A trade mark will be registered only if it has distinctive character that is to say, it must be capable of distinguishing the goods or services of the applicants from the goods or services of others.
Procedure
Step 1:
Before filing an application for registration of a mark in India, it is advisable to conduct searches to insure that the mark has not been used and registered by someone else in India. Such trademark searches can be made online and at the Office of the Trademark Registry (Mumbai, Kolkata, Delhi, Chennai and Ahmadabad).The application can be made in the name of an individual, partners, of a firm, a corporation, any government department, a trust or joint applications. The applicant may also request for the registrar’s opinion as to the distinctive character of the mark.
Step 2
When the application is accepted, it will be published in the Trade Mark Journal. Once it is published, any person has three months (which can be extended to a month at the registrar's discretion) to file a notice of opposition to registration. The Registrar will cause the application to be examined and communicate to the applicant any objection to the mark which mainly relates to distinctive character and similarity with already registered marks. Then there will be a response for the registration either by an affidavit, a hearing or by an interview. The application will be looked at to ascertain if it does not conflict with existing registered or pending trademarks. Based on this, an examination report is issued.
Step 3:
Acceptance or refusal of your trademark application will be considered once the opposition proceedings have been completed. If it is refused the applicant can put forward a case in writing or hearing and can even appeal to the Appellate Board. Once you register your trademark, you will be issued an official receipt with a TM number.
Usually, the Indian Trademark Registry grants the registration within a year, but sometimes it can take longer.
Term of Trademark
The registration is valid for a period of 10 years, and may be renewed for further periods of 10 years each with payment of the renewal fee. So, a mark, if renewed on time, can be protected in India indefinitely.
Requirements for filing application for Trade Marks:
1)Power of Attorney
2)Trademark (LOGO OR WORD) (as intended to be used) to be registered.
3)If the applicant is a partnership firm, Name, address, nationality, contact numbers of all the partners must be given.
4)Description of goods or services and whether the mark is already in use or proposed to be used.
Documents required
1)A soft copy of the logo.
2)TM 1 (application form)
3)TM 48 (form of authorization).
4)Date of first use of the mark.
5)Name and address of the proprietor of the mark.
6)Required fee.
Costs for trademark transactions
1)To file a new application there are set forms depending on the nature of your application, which are for Rs 2,500
2)To file a notice of opposition to oppose an application published in the Trade Marks Journal : Rs 2,500
3)For Renewal of a registered trademark : RS 5,000
4)Surcharge for late renewal : Rs 3,000
5)Restoration of removed mark : Rs 5,000
6)Application for rectification of a registered trademark : Rs 3,000