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FREQUENTLY ASKED QUESTIONS ABOUT TRADEMARKS IN INDIA

 

INDIAN IP LAWS

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TRADEMARKS
 
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  1. What is a trademark?

    A trademark is a distinctive sign or indicator used by an individual or an organization and is applied to the articles of commerce so as to identify the products of one trader from those of another. Simply, a trademark is a warden of a trader.

  2. What is the fee for filing trademark application in India?

    or

    How much does it cost to file trademark in India.

    Cost (official fee) for filing one trademark application in one class in India is mentioned in table below :

    On what payable

    Statutory Fee (INR)

    (E-Filing)

    For Startup/Individual/SME

    Statutory Fee (INR)

    (E-Filing)

    Other entities

    Trademark Application

    4500

    9000

     

  3. What is the fee for renewal of trademark application in India?

    or

    How much does it cost to renew a trademark India?

    On what payable

    Statutory Fee (INR)

    (E-Filing) per class

    Renewal of one Trademark Application

    9000

     

  4. What are the qualities of a good trademark?

  5. A good trademark should possess the following qualities-

    • Easy to pronounce, spell, remember.

    • Should be distinctive and should not have deceptive similarity.

    • Should not be descriptive.

    • Laudatory word/words such as best, perfect etc to be avoided.

  6. Is the registration of trademark mandatory in India?

    No, registration of a Trademark is not mandatory in India but it is advisable to do so.

  7. What are the benefits of a registered trademark?

    1. Identifies the origin of goods & services.

    2. Advertises goods & services.

    3. Guards the commercial goodwill of a trader.

    4. Protects the public from buying goods of second-rate quality.

  8. How is a trademark designated in India?

    A trademark is designated by the following:

    1. ™ (for an unregistered trademark, that is, a mark used to promote or brand goods)

    2. ® (for a registered trademark) How the Symbols ® and TM are to be used in India Only the proprietor of a registered trademark can use the symbol ® in India. Using the symbol ® unless the mark has been registered in India is unlawful. Using symbol TM with trademark simply means that one claims to be the proprietor of the trademark. There is no prohibition on the use of the symbol TM in India.

  9. What can be registered as a trademark in India?

    Following marks can be registered under the Indian trademark law:-

    1. Names

    2. Invented / Coined Words

    3. Numerals

    4. Letters

    5. Devices

    6. Combination of colors

    7. Shape of goods

    8. Slogans

    9. Signature

    10. Sound Marks

  10. Can Three (3) dimensional or 3-D trademarks be registered in India?

    Yes as per the Indian trademark Law 3-D marks or Three Dimensional marks can be registered in India.

  11. Can Sound be registered as a trademark in India?

    Yes, Sound Marks can be registered in India under the Trademark Rules, 2017 as it has to be submitted in the MP3 format not exceeding thirty seconds length recorded on a medium which allows for easy and clearly audible replaying accompanied with a graphical representation of its notations. However, Smell Marks cannot be registered under the Trade Marks Act, 1999 as definition of trade mark makes it clear that in order to constitute a trade mark it should be “represented graphically” [section 2(1)(zb)].

  12. Can a domain name be registered as a trademark or service mark in India?

    Yes, so long it is being used as a trademark or service mark. If it is merely used to indicate the URL or address at which a web site may be found, such use is not sufficient. It must be used a source identifier for the goods or services.

  13. Is it possible to have a descriptive trademark registered in India?

    No, it is not possible to register such a trademark unless it has obtained distinctiveness and popularity by way of extensive use

  14. What is a Service mark?

    A service mark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product.

  15. What is a Collective mark?

    A collective trademark or collective mark is a trademark owned by an organization (such as an association), whose members use it to identify themselves with a level of quality or accuracy, geographical origin, or other characteristics set by the organization. Example-the "CA" device used by the Institute of Chartered Accountants.

  16. Who can apply for trademark application in India?

    An application for registration of a trademark in India may be made by any person claiming to be the proprietor/owner of a mark for those goods and services for which he is using or intends to use the mark. At the time of filing the application, the proprietor must have the intention to use the mark.

  17. Whether foreign proprietors can apply for registration of trademark in India?

    Yes, foreign proprietors can apply for registration of trademark in India. The Indian trademark Law is TRIPS obedient and provides for protection of well-known trademarks and recognizes trans-border reputation.

  18. What is the worth of trademark and how can it be exploited economically?

    A trademark is an incorporeal asset and is also a guardian of the commercial goodwill of a business. Monetary gains can be enjoyed by licensing and assignment of the trademark.

  19. Is use necessary for filing a trademark in India?

    No, use of mark prior to registration is not mandatory in India. Trademarks that are proposed to be used can also be registered in India.

  20. If use is being claimed is it required to file a statement of use of the trademark at the time of filing an application?

    Yes, if use of a mark is to be claimed, a statement of use in the form of an affidavit is required to be filed at the time of e-filing a trademark in India.

  21. How can we know whether similar marks have already been registered in respect of same type of goods in India?

    A trademark search can be conducted in India on the Indian Trademark Registry’s Website at: www.ipindia.nic.in

  22. Can a multi class trademark application be filed in India?

    Yes, under the Indian trademark law, multi-class trademark application can be filed in India.

  23. What are the grounds for objections or refusal to register a trademark in India?

    A trademark can be refused registration under the relative and absolute grounds:

    Relative Grounds of Refusal for Registering a Trademark India:

    A trademark is refused registration under this category if the trademark is:

    1. Similar or identical to an earlier trademark for the same or similar goods/ services.

    2. Similar or identical to an earlier trademark in respect of different goods/ services.

    Absolute Grounds of Refusal for Registering a Trademark India:

    A trademark is refused registration under this category if the trademark is:

    1. Devoid of any distinctive character.

    2. Consists exclusively of the marks or indications which may serve in trade to designate the kind, quality, quantity, intended purpose, values, geographical origins or the time of productions of the foods or rendering of the service or other characteristics of the goods or services.

  24. Which trademark cannot be registered?

    A mark shall not be registered as a trademark if-

    1. the mark is likely to deceive the public or cause confusion.

    2. the matter contained or comprised in the mark is likely to hurt religious susceptibilities of any class or section of the citizens of India.

    3. it contains or comprises of scandalous or obscene matter.

    4. its use is prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950. 5. The mark is prohibited under the International Non-proprietary names

  25. Where can an application for registration of trademark in India be filed?

    Application for registration of a trademark in India can be filed at any of the five intellectual property offices (located at Chennai, Mumbai, Kolkata, Delhi, and Ahmadabad) depending upon the jurisdiction of the primary place of business of the proprietor/owner or the location of the agent in case of foreign proprietors.

  26. What is the procedure for registering a trademark in India?

    The procedure for registering a trademark in India is as follows:-

    Trademark application filing in India:- as per the procedure specified in the Trademarks Act.

    Examination Report by the Registry:- an examination report is usually issued within three months to one year depending on the back log of the registry.

    Reply to examination report- a reply to an examination report has to be filed within a period of one month from the receipt thereof. If the registry is satisfied with the reply, the application shall proceed for advertisement in the Trademarks Journal.

    Advertisement in Indian Trademarks Journal- an application is advertised in the Trademarks Journal so as to invite the public for filing an opposition for the mark.

    Opposition- the time period to file a notice of opposition is four months from the date the Trade Marks Journal in which the mark has been advertised, has been made available to the public.

    Registration- where no opposition is filed within the specified time, the application shall proceed to registration.

  27. What is the benefit of a registered trademark as compared to unregistered trademark in India?

    The following are the benefits of a registered trademark over an unregistered one-

    1. Use the ® symbol which forms the prestige of the brand.

    2. Statutory right over the trademark.

    3. Exclusive right to lease/license/assignment of the trademark.

    4. Action for infringement.

    5. Right to seek civil, criminal and administrative remedies.

    6. Right to seek both civil and criminal penalties against counterfeiting goods.

    7. Constructive notice of ownership of the Trademark.

  28. What is the period of limitation for filing a suit for infringement of a trademark in India?

    3 Years from the date of infringement/misuse. Hence, every time a mark is misused a fresh cause of action arises.

  29. What is the term of registration of a trademark in India?

    10 Years and is renewable every 10years.

  30. Is a trademark renewal application examined in India?

    No examination of renewal application is done in India as filing for renewal within the statutory period is a matter of right.

  31. Does the Indian trademark law bestow protection to un- registered trademarks?

    An action for passing off can be brought for misuse of an unregistered trademark.

  32. Can a trade mark be removed from the Indian trademark register because of it not being in use after registration?

    Yes, if a registered trademark has not been used for a continuous period of five years from the date on which the trade mark is actually entered in the register, it can be removed on an application for rectification / cancellation made in prescribed manner by filing request before Trade Marks Office in India.

  33. What is the fee structure for filing and registration of a trademark in India?

    The FORMS along with the requisite fee for filing them are set out under the First Schedule which can be accessed at http://www.ipindia.nic.in/form-and-fees-tm.htm  

    As per the notification issued by the Department of Industrial Policy and Promotion, the official fees for the following purposes have been revised under The Trade Mark Rules, 2017 w.e.f. March 06, 2017:

    The said public notice, specifying the increase can be accessed at

    http://www.ipindia.nic.in/writereaddata/Portal/News/312_1_TRADE_MARKS_

    RULES_2017__English.pdf

    On what payable

    Previous Cost

    Revised Cost

    Physical filing

    E-filing

    For filing a new application on behalf of a Company or trust or partnership

    For both Physical filing and E-filing - 4000.

    10,000

    9,000

    For filing a new application on behalf of an individual or start-up or small enterprise

    For both Physical filing and E- Filing – 4000

    5,000

    4,500

    For filing renewal application

    For both physical filing and E-filing – 5000 per class.

    10,000 per class.

    9,000 per class.

    For recording an assignment

    1. For a pending application – 500

    1,000

    900

    2. For Registered Marks within six month after the date of assignment – 5000

    10,000

    9,000

    For adding a person as a registered user

    5000 for first mark

    3000 for each additional mark

    5,000

    4,500

    For extension of time, certified copy of registration certificate or duplicate registration certificate

    For both physical filing and E-filing – 500

    1,000

    900

    For expedited processing of an application

    20,000 (for expedited examination only)

    Not allowed

    40,000

    Handling fees for Madrid Applications

    2,000

    Not allowed

    5,000

    Request to include a trademark in the list of well - known trademark

    N.A.

    Not allowed

    1,00,000

  34. How long does it take to get a trademark registered in India?

    It takes around 1-2 years for the mark to get registered, in case no series objection is raised against the application.

For more information on Trademark FAQs in India please write to us at: info@ssrana.com

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