Properties are either tangible or intangible. Trademarks form a part of an intangible property owned by individuals and or businesses. This nature of the intangibility of trademarks is what makes it extremely important to get a trademark registration for businesses. By now, the majority of people are aware of the importance of trademark registration. However, not many are aware of how the TM registration process takes place. In this blog, we will understand the process of brand name registration in a simplified manner!
WHAT EXACTLY IS A TRADEMARK?
A Trademark is a mark, capable of geographically representation and used in the course of trade. A trademark or commonly known as a brand name can include any of the following:
- A name;
- A logo;
- A slogan;
- Any packaging material;
- Any unique shape;
- Scentmark; and
- Sound mark.
The most commonly seeked trademarks today are brand names, logos, slogans, unique shapes (such as the Toblerone bar), and packaging materials. Public figures and celebrities are even focusing on registering their names, to protect their unique identity.
PROCESS OF TRADEMARK REGISTRATION
The trademark registration process is not as complex as it would seem at first glance. There are multiple steps in the e-filing of a trademark. A brief explanation of each of these stages is provided below:
Identify the appropriate class
Trademark class refers to the basic classification through which goods and services are distinguished. When one decides to apply for a trademark, the first step is to identify the appropriate trademark classes.
Trademark Search
Trademark registration is only available to unique and distinctive marks. To simplify this, before one applies for a trademark, one needs to perform a trademark search on the IP India Public Search portal. One can enter their brand name, and relevant class to get a result of all existing similar marks. The process of trademark search ensures that the mark proposed is not similar to any relevant existing mark in the register of trademarks.
Filing form TM – A
Once a mark is in the clear of being unique and distinctive, one can apply for its registration. An applicant can file a trademark application by submitting the TM-A form to the Trademark Office of the applicable jurisdiction. Online and offline modes are both available for trademark filing. Once an applicant submits the form with the requisite government fee, they receive their TM application number. This application number acts as a proof of the ongoing trademark registration process and allows the proprietor to add the ™ symbol to their mark.
Examination of the Mark
The Trademarks Act, 1999 provides certain grounds under which a trademark application becomes liable to refusal. It is the duty of the Trademarks Registry to examine all applications submitted before it, and object to the marks falling under these grounds. Once the trademark officer completes the examination of a particular mark, it issues the examination report.
Issuance of the Examination Report
Examination Report might either state that the mark is ‘Accepted’ without any objections, or that the mark is subject to refusal to on XYZ grounds. In case an application receives an objection, the applicant has to submit a reply letter (MIS-R) within 30 days of issuance of the examination report.
Show – cause hearing in Trademark
The Trademark Officer goes through the reply submitted against the Examination Report. Upon inspection, the Officer might either find the reply to be satisfactory or might need further clarification. If the latter is the scenario, they issue a notice of show-cause hearing.
The proprietor can represent their case in the Trademark Show-Cause hearing. After getting all submissions in favour of the mark, the officer might either Accept the mark or Refuse it. One can challenge the decision of refusal in the Courts of India. However, in case of acceptance, a different process follows.
Acceptance and Advertisement in the Trademarks Journal
All accepted marks are published in the journal of trademarks for four months. The reason behind this is to provide a chance to other stakeholders, to file a third-party opposition against the registration of any mark as a trademark. In these four months, if any third party doesn’t oppose the mark, the applicant receives a registration certificate.
Third-Party Opposition
If a third party opposes after advertisement in the journal of trademarks, it creates a hindrance to the registration process. It takes around 24 months to get clearance from the opposition. Once opposed, it becomes the onus of the applicant to prove to the registry that the grounds of opposition are baseless and to prove why the mark should be registered.
Registration
If the application is not opposed after being advertised in the journal, it receives a registration certificate. However, if a mark is opposed, registration is provided only if that opposition gets cleared by the Registry. Once the proprietor receives the registration certificate, they can start using the ® symbol associated with registered trademarks.
CONCLUSION
It takes a lot of effort, time, and energy for entrepreneurs to come up with unique brand names. Due to increased competition, retaining a brand identity is becoming difficult. Trademark Registration in India provides that protection against infringement. The entire registration process takes around 18-24 months to complete. However, A registered trademark can last up to a lifetime, if it is renewed on a timely basis at the end of every 10 years.