That ‘M’ in Mcdonald’s is hard to miss. So, is the Grandpa in the advertisement of KFC. Whenever noodles are served in our kitchen, the question is ‘how is the maggi?’ Search has been replaced by google. Washing Powder is now called ‘surf’. Who knew our dictionaries are enriched day by day by the names of the different companies, their slogans and products. So, welcome to the world of trademarks.
Trademarks, in theory, are a word, symbol, device, or any combination used to identify and distinguish someone’s goods or services from others. The main function of a trademark is that it can provide captivate the consumers attraction by your ‘finger-lickin good’ lines and logos. Gradually, you will be able to cull out a stream of consumers who can easily choose and identify your products over others with the help of these marks. Thus, it serves both the function of capturing the market and monopolizing it. And yes, who wouldn’t love their brand to be so popular that its name is used in every ‘Whisper’ings in a group.
Now, comes to the question as to what shall we do to get a trademark? Does it have to be registered? Registration of a trademark implies that you have both the shield and sword to attack any person who infringes your marks. Keeping all the jokes aside, frankly speaking, registration of your mark will not prevent any similar trademark to get registered. The Controller would see if any similar mark exists in the record and reject the application if the trademark is similar to any registered trademarks, Thus, it is a shield. Nonetheless, even if a similar unregistered mark is used in the market, you can oppose it successfully in court as the presumption is highly in favor of a registered trademark and the burden to prove is with the person using unregistered trademark. Always it is wise to get the trademark registered. It is does not costs much time or money. Also, you are entitled to the IP Protection.
Registration of Trademark, unlike that of firms and companies, doesn’t involve paperwork but much is left to the discretion of the Controller and the possibility of any other similar mark existing. So, the chances of your application getting rejected are high. Let us now buckle up to explore the methods of getting your trademark registered.
Step 1 : Make your Mark
Trademark must be any distinguishable mark and can be in the form of any of the following kinds :-
– Names, including your own name or surname.
– An invented word or any arbitrary dictionary word or words. It does not need to be descriptive of the character or quality of the goods/service.
– Letters or numerals or any combination.
– Combination of colours or even a single colour in combination with a word or device.
– Shape of goods or their packaging.
– Marks constituting a 3-dimensional sign.
– Sound marks when represented in conventional notation or described in words by being graphically represented.
I don’t have any advise for this step. Just let the right side of your brain take control and spill in your creativity.
Step 2 :- A little investigation before hitting the crime scene
Once you have your logo, mark or symbol ready, you should conduct a pre-search to find if anyone is using the similar mark in the market. The search may be done online through the website of Controller General of Patents Design & Trademarks. It can be done offline. You need not do it entirely by yourself. One can hire a trademark attorney and make life easier too.
Link to website : http://ipindiaonline.gov.in/tmrpublicsearch/frmmain.aspx
Step 3 :- Get all the documents
First of all, you need to get all your documents ready which includes :-
- Trademark or logo copy
- Applicant details like name, address and nationality and for company: the state of incorporation
- Goods or services to register
- Date of first use of the trademark in India, if used by you prior to applying.
- Form of authorization of agent, if any – Form No. 48.
Step 4 :- Time to put the red tape.
Now, you need to fill in the TM 1 application form (for ordinary trademark) with the prescribed fee at one of the five offices of the Trade Marks Registry located at Mumbai, Delhi, Kolkata, Chennai and Ahmedabad. This will depend on the place where you reside or have your main place of business. It can be filed online as well. Online filing will be better as it will speed up the entire process. Once you register your trademark, you will be issued an official receipt with a TM number.
Link to online filing – http://ipindiaonline.gov.in/trademarkefiling/user/frmlogin.aspx
Application Fees for ordinary trademark – Rs. 3500/-
Step 4 :- Fingers Crossed on Examination Report
Your application will be looked at to ascertain if it does not conflict with existing registered or pending trademarks. Based on this, an examination report is issued. As you defeat objections raised by the registrar, your application is then published in the Indian Trade Marks Journal, with an endorsement stating either that it has been accepted or that it is being published before acceptance.
Time :- within 3 months of filing of the application
Step 5 :- The Grand Finale
Once it is published, any person has three months (which can be extended to a month at the registrar’s discretion) to file a notice of opposition to registration. Acceptance or refusal of your trademark application will be considered once the opposition proceedings have been completed.
Time :- if there is no opposition, the registration will take place within the next six months time.
Duration of trademark
The term of registration of a trademark is 10 years. This may be renewed for a further period of 10 years on payment of the renewal fees.
Costs for trademark transactions
To file a new application there are set forms depending on the nature of your application. The forms are numbered as TM-1, TM-2, TM-3, TM-8, TM-51 etc: Rs 2,500
To file a notice of opposition to oppose an application published in the Trade Marks Journal a (FormTM-5): Rs 2,500
For Renewal of a registered trademark (Form TM-12): 5,000
Surcharge for late renewal (Form -10): Rs 3,000
Restoration of removed mark (Form TM-13): Rs 5,000
Application for rectification of a registered trademark (Form TM-26): Rs 3,000
A person who has filed only an application for registering the trademark is still entitled to put the symbol of TM above their mark. This is like a warning issued to all about the pending trademark application on that mark. Once the mark gets registered, you should use ® symbol in place of TM. And after that, viola! You may stand on your mark, get, set and go.