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FREQUENTLY ASKED QUESTIONS ABOUT TRADEMARKS IN INDIA

 

INDIAN IP LAWS

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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 are the qualities of a good trademark?

 

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.

 

3. 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.

 

4. What are the benefits of a registered trademark?

  • Identifies the origin of goods & services.

  • Advertises goods & services.

  • Guards the commercial goodwill of a trader.

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

5. How is a trademark designated in India?

 

A trademark is designated by the following:

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

  • ® (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 is unlawful in India. 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.

 

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

 

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

  • Names

  • Invented / Coined Words 

  • Numerals

  • Letters

  • Devices

  • Combination of colors

  • Shape of goods

  • Slogans

  • Signature

  • Sound Marks

7. 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.

 

8. Can Sound and Smell be registered as a trademark in India?

 

Yes, sound and smell can be registered as a trademark in India under the Indian trademark law.

 

9. 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.

 

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

 

No, It is not possible to register such a trademark.

 

11. 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.

 

12. 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.

 

13. 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.

 

14. 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.

 

15. 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.

 

16. Is proof of 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.

 

17. Is it require to file a statement of use of the trademark at the time of filing an application?      

 

Yes, a statement of use including whether the mark has been in use or is proposed to be used is required to be filed at the time of filing a trademark in India.

 

18. 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

 

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

 

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

 

20. 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.

21. 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 Act, 1950.

22. Where can an application for registration of trademark in India can 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 same of foreign proprietors

 

23. 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 Trademarks 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.

 

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

 

In case of a registered trademark, an action for infringement lies where the aggrieved can sought civil and criminal reliefs.

 

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

 

3  Years from the date of infringement.

 

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

 

10  Years and is renewal every 10years.

 

27. Is a trademark renewal application examined in India?

 

Yes, the examination includes whether the application has been filed   in time and whether the same has been filed by the proprietor of the mark on record.

 

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

 

An action for passing off lies for infringement of an unregistered trademark.

 

29. 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 and three months, it can be removed on an application made in prescribed manner by filing request before trademark Office in India. 

 

30. 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://ipindia.nic.in/tmr_new/default.htm

As per the notification issued by the Government of India, the official fees for the following purposes have been revised w.e.f. August 01, 2014:

  1. Application to register a trademark in one class has been increased from INR 3,500 to INR 4,000

  2. Application to expedite examination of a mark has been increased from INR 17,500 to INR 20,000

 The said public notice, specifying the increase can be accessed at http://ipindia.nic.in/iponew/publicNotice_07August2014.pdf

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

 

It may be anywhere from almost a year to several years, depending on the basis for filing and the legal issues that may arise in the examination of the application.

 

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