Faqs

National filling & Prosecution:

A. What is a trade mark?

A trade mark (Popularly known as a Brand name) is a visual symbol which is capable of distinguishing the goods/services of one person from that of others which includes word, letter, shape of goods, packaging signature, name, device, label, numerals or combination of colours or any combination there of.

The legal requirements to register a trade mark under the Trademarks Act 1999.

The selected mark should be capable of being represented graphically (that is in the paper form)

It should be capable of distinguishing the goods or services.

It should be used or proposed to be used mark in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services and some person having the right to use the mark with or without identity of that person.

B. How to select a trade mark?

If it is word it should be easy to speak, spell and remember.

The best trade marks are invented words or coined words.

Please avoid selection of a geographical name. No one can have monopoly right on it. Avoid adopting laudatory word or words that describe the quality or characteristic of goods or services (such as best, perfect, super etc.,)

It is advisable to conduct a market survey to ascertain if same/ similar mark is used in.

C. What are the functions of a trade mark?

Under modern business condition of a trade mark performs four functions.
It identifies the goods/services and its origin.
It guarantees its unchanged quality.
It advertises the goods/services.
It creates an image for the goods/services

D. What are the benefits of registering a trade mark?

The registration of a trade mark confers upon the owner, the exclusive right to the use of the registered trademark and seeks the relief of infringement of appropriate courts in the country. The exclusive right is however subject to any conditions entered on the register such as limitation of area of use etc., also, where two or more persons have registered identical or nearly similar mark due to special circumstances such exclusive right does not operate against each other. The Registered Proprietor of a trade mark can stop other traders from unlawfully using his trade mark, sue for damages and secure destruction of infringing goods and or labels.

How long a TradeMark can be protected?

A Trade Mark registration is valid in India for 10 years, after which it can be renewed. How to find out a Trade Mark is registered / pending registration? After an application for a Trade Mark is filed and an application number is allotted, the symbol ™ is used on the top right hand corner of the Trade Mark. After registration certificate is obtained the symbol ® is used on the top right hand corner of the Trade Mark.

Trade Mark! Who is protected?

A trade mark is granted protection on the basis of
First Adoption
First User
First Inventor
First Invention / Adoption/ User is superior then the Registration

What are the Rights conferred by the Registration of IPR i.e. Trade Mark, Industrial Designs, Geographical Indications?

Monopoly for the Specified period is created in favor of the Registration Holder In case of Litigation Onus of Proof Shifts on the opposite Party Prima Facie presumption is raised in favor of the Registration Holder by courts

What are all the civil remedies available for the IPR holder?

Injunction/ stay
Damages can be claimed
Accounts and handing over of profits
Appointment of local commissioner by the court for custody/ sealing of infringing material / accounts
Interim Injunction