What is a Trademark?

A Trademark generally refers to a "brand" or "logo". Trademark registration can also be obtained for a business name, distinctive catch phrases, taglines or captions.
Properly used and promoted, a Trademark may become the most valuable asset of a business. Trademarks such as Coca Cola, HP, Canon, Nike and Adidas serve as an indication of origin of the goods as well as an indication of quality.
It is also essential to obtain trademark registration for the business name/trade name under the Trademarks Act. Registration of a company or business name under the Companies Act does not in itself give protection against others who might commence using identical or similar marks.

Use of TM, SM and ® symbols

'TM' stands for Trademark and 'SM' stands for Servicemark. The use of TM and SM symbols notifies the public that the company is claiming exclusive ownership of the trademark and can generally be used by one who has filed a trademark application.

The ® symbol, can be used only once the trademark is registered and the registration certificate is issued. Also, you may use the registration symbol only in connection with the goods and/or services in respect of which the trademark is registered.
The law of trademark deals with the mechanism of registration, protection of trademark and prevention of fraudulent trademark.
Trademark defined under Section 2 (zb) of the Trade Marks Act, 1999 as, "trade mark means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours." A mark can include a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colors or any such combinations.

Symbols

Selecting a good trademark

A trademark must be chosen carefully. If you are launching a product and adopting a new trademark, please bear in mind that the scope of legal protection you would obtain depends on the type of trademark chosen.

The most common mistake is to choose a word that is descriptive of the goods or services. People do this in the belief that the consumer will know straight away what the product is or the service rendered. The same result can easily be obtained by combining a distinctive and fanciful trademark with a word which indicates the goods or services. E.g. Kodak film.
Descriptive trademarks are difficult to register and enforce. Although it may be easier to market such products at inception, such trademarks are offered the least amount of protection and therefore, in the long term, it would be difficult to stop your competitors from using the same or similar trademarks.
A better strategy would be to adopt a coined word, which has no reference to the goods/services upon which it is used. E.g. Canon Another option is to adopt an arbitrary word, which has no relevance to the goods/services upon which it is used. E.g. Apple computers; Lotus software The more distinctive a trademark is, the broader will be the available scope of protection.

GUIDELINES TO BE FOLLOWED:

1. AVOID Superlative or Laudatory words E.g. Premium, Gold, Deluxe .
2. AVOID Descriptive words E.g. Coffee shop for coffee bars; Cooler for Refrigerators.
3. AVOID trademarks Confusing Similar to existing trademarks.
4. AVOID words which have direct reference to the Character or Quality of the product/service. E.g. Best Choice, Easy Cook, Super.
5. AVOID Common Personal Names or surnames. Such names are registrable only if it has acquired distinctiveness through advertisements and long use.

Well known geographical names such as SWISS chocolates or U.S.A. pizza are also not registrable. There are also other factors to be considered in the adoption of trademarks, which is beyond the scope of this text.

What are the advantages of obtaining trademark registration?

1. Prima-facie evidence of ownership of the trademark.
2. Important asset for your business or company and contributes to the goodwill generated.
3. Gives you stronger enforceable rights to prevent others from using the trademark in connection with the goods or services for which it is registered.
4. Trademarks can be sold, licensed or assigned.
5. Registration usually covers the whole of India.

Registrations of Company Names, Business Names or Domain Names do not provide ownership or a monopoly right in a name as do trademark registrations.

A search of the Indian Trademark Registry database will indicate whether there are any marks identical or deceptively similar to your trademark in India. The trademark search can be conducted in the official Trade Mark Registry website in India in the link copied below:
CLICK HERE

A logo can be protected both under the Trade Marks Act and Copyrights Act. Trademark Registration enables you to obtain protection for the brand name and also provides certain amount of protection to the manner in which the trademark is represented. However, if you need exclusivity for the representation of your trademark or logo, a copyright registration is strongly recommended. Copyright registration does not however offer any protection for the brand name.

Once the trademark is registered, it is valid for a period of 10 years from the date of application. The registration can then be renewed indefinitely as long as the renewal fees are paid every 10 years.

Trademark Registration is a lengthy process and it takes around 18-24 months to obtain registration in a straight-forward case, without any objections or oppositions. However, the trademark application number is usually issued within one or 2 days after filing.

You may use the ® (Registered symbol) next to your trademark once your trademark is registered and registration certificate is issued. Kindly note that it is an offence, with penalty, to falsely claim that your trademark is registered. Till the registration is obtained, you can represent your trademark along with the letters TM to indicate that you claim rights over your trademark

Trademark Classes