What is a Brand?
A brand can be defined as a name, term, design, symbol or any other feature which differentiates an organization or product from its rivals in the eyes of the customer. Brands are generally used in business, marketing and advertising. Branding is a set of marketing and communication methods that help to differentiate a company or products from competitors, aiming to create a lasting impression in the minds of customers. The key components that form a brand’s toolbox include a brand’s identity, brand communication (such as by logos and trademarks), brand awareness, brand loyalty, and various branding (brand management) strategies.
However, it is often heard that the term ‘trademark’ is often heard instead of the word ‘brand’ but it is important to note there is a legal difference between the two, a trademark is a mark that legally represents something, usually a business, by their goods or services. A brand name, however, is the name that a business chooses for one of their products. A brand identifies a specific product or name of a company.
Trademark (Brand) Registration in India
To separate a business from other businesses or trade one must distinguish its identity in the market from its competitors and accomplish this task trademarks are created with a sole aim to protect the identity of any organisation. However, there are few essentials while having a trademark in India, Registration of a trademark is one of the major essential during the creation process of a trademark or a brand. In India, registration of a trademark is a legal process provided under the Trade Marks Act, 1999. This article thoroughly describes the registration process implemented during the creation of a brand or a trademark.
A trademark can be easily registered in India by following few steps which can be briefly called as :-
- Predecide a unique brand name
- Make the trademark application
- Fill the brand name registration application
- Examining the brand name registration application
- Publication in the Indian Trade Mark Journals
- Issuance of the trademark registration certificate
1. Predecide a unique brand name:
To register a brand in the registrar of trademarks, the brand name should be unique and should be wacky enough. It is important to come up with a whacky and quirky brand name because all the generic ones are any which was taken. Before zeroing in on one name, you might want to do a quick search to make sure that no one else is already using the name. And your best bet would be to use invented or coined words, in a combination with generic words.
2. Mark the trademark application:
Now that your name is finalized upon, fill in the trademark application i.e. Form- TM 1. The application costs INR 3500 and is a onetime fee. Along with the application, you will need to submit a couple of supporting documents:
A Business registration concern: Depending on what type of a registered business you have, say sole proprietorship, etc. you will need to submit an identity proof of the directors of the company and an address proof. An image of your brand logo in a standard size of 9 x 5 cms If applicable, proof of claim of the proposed mark being used before in another country.
3. Fill the brand name registration application:
There are 2 ways to file the registration – manual filing or e-filling. In case of manual filing, you will need to personally walk down and submit the application for registration to any one of the offices of the Registrar of Trade Marks located in Mumbai, Delhi, Kolkata, Chennai and Ahmedabad. After which you receive the acknowledgement of the application and the receipt, usually within 15-20 days of the filing. But in e-filing system, the acknowledgement of the application is issued immediately. And after you receive the acknowledgement, you can start using the (TM) symbol next to the brand name!
What is the benefit of e-Filing?
You will immediately:
- Receive a trademark application number
- Online verification to assure error-free filing and obtain your filing date
- Speed up the registration process
- Print the completed application data and receive fee acknowledgement
- Save the data locally in your PC
- Be able to recall your contact details for subsequent applications
- You can also view online history and status of the applications filed by clicking “Status of Filed Application” and the online status of e- Payments.
4. Examining the brand name registration application:
After receiving the application, the Registrar checks whether the brand name complies with the law and does not conflict or dispute with other existing registered or pending brands. That’s why, quirky brand name, people! If there is an objection then a hearing is called before the Trademark hearing office where the applicant and the objecting party gives evidence for their stand. Based on the evidence and hearing the officer decides to accept or reject the Trademark registration. If not opposed then the Trademark registration certificate will be given.
5. Publication in the Indian Trade Mark Journals:
After examination, the logo or brand name is published in the Indian Trade Mark Journal. If no one raises an opposition within 3 months i.e. 90 days or in some cases 120 days, from the date of publication, the brand name proceeds to acceptance.
6. Issuance of the trademark registration certificate:
If no one raises any opposition, within the stipulated 90 days period, the Registrar accepts the trademark application! And issues a Certificate of Registration under the seal of Trademark Registry. You may now be allowed to use the registered trademark symbol (®) next to your brand name once the certificate has been issued. The whole process of registration of a brand name usually takes anything between 15-18 months. The trademark once accepted, is valid for a period of 10 years from the date of issuance of the Certificate of Registration. After the end of 10 years, the trademark will need to be renewed.
Benefits of Registering Your Trademark
In India, it is not compulsory to register a trademark. However, there are certain
obvious benefits of registration of the same. The benefits are enumerated as
- A registered trademark identifies and advertises the good/service.
- It protects the commercial goodwill of the trader/owner of the trademark.
- It protects consumers from buying forged or inferior goods.
- In the case of an infringement of a registered trademark, the owner has the option of civil and criminal remedies. In the case of an unregistered trademark, the only remedy available to the owner is the option of filing a suit of passing off.
Trademark and Copyright are intellectual property
The trademark is a mark with which the customer identifies the brand and it prevents the business from having similar names in the commerce. It also ensures that the business earns royalty through the assignment agreements. It is valued indefinitely. Copyright, on the other hand, applies to the audio-visual and the literary works like photography, music and movies. It is the right given to the author, script writer, creator, software developer, musician and artist. Even though copyright registration is not important, but in the case of infringement, a registered copyright gains more importance. Things like names, titles, slogans, catch phrases, symbols and designs are protected by the trademark protection while any form of art and literature like dance choreography or an art gallery or a great novel can be protected by the Copyright protection.
What are the Remedies Available in the Case of Infringement?
Infringement of trademarks occurs when there is a wrongful use of a trademark by a person who is not the registered user of the same. Infringement may occur even for the use of a mark that is not identical, but deceptively similar to the original mark. The registration of a trademark gives the registered user exclusive rights to enjoy the mark for himself. When these rights are violated, he may claim relief for infringement of his exclusive rights.
Remedies in the case of trademark infringement are only extended to owners of registered trademarks. However, unregistered trademark owners do have the option of filing a suit of passing off in case their trademark has been infringed. Injunctions, damages, handing over of profits, etc., are some of the options available in a suit of infringement. In case, a trademark has been deceptively used for some purpose that has tarnished the image of the original trademark and the business to which it is attached, the case for infringement becomes stronger.
Trademarks law in India is developing slowly but surely. India is aiming to harmonize its intellectual property laws with international practices. With India aiming to become a part of the top economies of the world, it is important to have laws that are coherent and decisive and at par with the global standards. The trademarks law is simplistic. Its basics explained above are enumerated clearly in the legislation.