Trademark is defined as any logo or mark that is lawfully protected and can be graphically represented which can distinguish the products of an organization or company from others merely by the virtue of the mark. The trademarks in India is protected under Trade Marks Act, 1999. The Controller General of Designs, Patents and Trademarks is also known as the Registrar of trademark. The central government by its powers can appoint other officers to assist the working of the registrar.

How to register a trademark

According to section 18 of the Trade Marks Act,1999, a person who considers himself as the proprietor of the trademark can apply for the registration of the trademark. The term “any person” includes any individual, company, association, society, Hindu Undivided family (HUF), partnership firm.

A single application for trademark can be filed to include different categories of goods and products with the fees being paid separately. The trademark must be registered in the office that determines the territorial limits of the place where the proprietor wants to sell or market his products.

After this the registrar may think and if he deems fit can approve the registration of the trademark or deny it. If denied, the Registrar must give in writing the reason for his denial.

Section 20 of the Act allows the registrar to advertise the registered trademark in the leading journals and vernaculars to give the information and intimation to the public about such registration and also invite any opposition to the registration. Section 21 allows any person to put up a notice of opposition to the registration within 4 months from the date of advertisement or re-advertisement of registration.

The registrar may then give an opportunity to the opponent to bring forward his complaint and cause of opposition. He can further ask the opponent to bring up supporting documents to verify and establish the claims if it has reasonable grounds.

A trademark once registered is valid for a period of 10 years. Once the duration is over the trademark is no longer protected hence must be renewed before time. If the renewal doesn’t not take place on the completion of the period, then the proprietor can pay a surcharge and renew the registration within 6 months of the date of expiry.

Importance of registration

Nowhere it is explicitly mentioned that a trademark must be registered mandatorily. Registration basically helps the proprietor to file a case if infringement takes place. Even if registered, the trademark loses it importance and value if it is not used on the products that it has been registered to describe.

It also does not mean that a trademark that is not registered under the law is not protected. Under Section 27, it is stated that the unregistered trademarks can be protected by the common law right of passing off. Passing off primarily means that the proprietor of the unregistered trademark can claim compensation from the opposing party by the virtue of the claim that they have been selling their products in the name and goodwill of the proprietor’s company.

But if the trademark is registered, then it gives the exclusive right to the proprietor to use the trademark for his products. Secondly, it also assures and gives the validity. It also ensured that the registered user of the trademark will not be at disadvantage if there arises a case of passing off.

Limitations to registration

A trademark is registered as a whole and not as a part. So the proprietor cannot take a part of the trademark (undistinctive) and start using it in other parts of the country and claim it to be a registered trademark. There is no need of a special mention regarding this by the Registrar, but if he feels it is apt to do so, then he may state and write down the rules and regulations regarding the usage.

Secondly if two identical trademarks has been registered by 2 proprietors then they cannot claim exclusive rights for one trademark against the another. But they have the right to claim for infringement against a third party.

Aishwarya Says:

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