Trademark Registration Process

“Whenever we explain the Trademark Registration Process to our new clients, who meets me to seek clarity on the process of trademark registration in India, and why does it is so necessary to register the brand with the registrar of the trademark. We start with an explanation of the meaning and purpose of the trademark.“

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Trademark Registration

A trademark is a representation of a particular business; it can be in the form of a word, name of the company itself, a logo which that business usage, a tagline, or names of the products or services or anything through which that business is known in the marketplace. To put it simply it is something with which the origin of goods or services can be traced to the company which provides it. A trademark is a unique mark or sign that is used to represent a business which is either trading in goods or services, the marks associated with goods are known as a trademark (TM) and which is with services is known as a service mark (SM). It is used to distinctively identify a company from that of another and build its credibility among consumers. If one does not register brand name, logo or trademark, then he/she cannot stop an imitator from confusing the public by using same or similarly deceptive name or mark that results in financial and economic loss of business in long-term.

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 Setupfiling  provides professional service for trademark registration, Logo registration and Brand Name registration for your company or products In India and worldwide. The intellectual property right (IPR) in Trademark arises with its first use in favour of the person who for the first time conceived the brand or trademark and used it. The registration of the mark under Trademark Act is a proof of prima-facie ownership in the trademarkThe trademark registration process starts with making an application in prescribed form to the registrar of trademark. Team Setupfiling assists you in filing a trademark application in India at a very nominal fee of just Rs. 2,000/-. The Government fee in case of the individual applicant is Rs. 4,500/- while for companies it is Rs. 9000/-. Registrar of trademark offices at Delhi, Kolkata, Mumbai and Chennai, are registering authorities under The Trademarks Act, 1999. The trademark rules have prescribed a proper method to seek registration of the trademark in India. Trademark Registration Process is a long and lengthy process in India, which in some cases take more than two years. However, with start-up India initiative the time taken in obtaining the registration of the trademark has come down considerably. The process of registration begins with the filing of a trademark application with the registrar of the trademark which is followed by an examination of the same by the examiner of the trademark which issues its report either accepting the application or objecting to it. The applicant must reply to the examination report within 30 days of its receipt. When the objections raised by examination report is addressed, the application is marked for advertisement in the trademark journal and if no third party opposition is received the trademark gets registered. The critical stages are filing of TM application, reply to examination report, departmental appearances, opposition proceedings, etc.

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Trademark Registration Process in India

There are 45 Classes in which a trademark application can be filed for registration. Class 1 to 34 pertains to goods and classes 35 to 45 for services. The protection to the owner of marks is provided based on the goods or services in which the trademark is being used. The first step shall be to see the classes in which a particular trademark falls. Team Setupfiling is available to assist you in finding classes for your goods or services. In case the items for which trademark is being filed falls under more than one class then separate application to be filed for each such class.

As explained earlier the ownership right in trademark arises with its first usage, in the trademark application the user ship date of the mark is required to be mentioned specifically. The date field in the form is considered as an admitted fact before the courts hence care must be taken while determining the date of user-ship. Any documentary proof adds immense value, and it can be in the form of a contract, email, invoice, proposal, presentation, catalogue or any publication where the trademark was put to use for the first time. In case a mark has been put to use on the different date concerning various goods or services then, in that case, a separate application must be filed concerning each such goods for which the user-ship date is different even if the goods fall under the same class. If the trademark has not been put to use, then an application can be filed by mentioning “proposed to be used” under user date column.

A Proper description of the mark in application plays a very significant role in its registration process as well as in the case of litigation for enforcement of rights, as the exclusive right of usage of the trademark is granted only for the goods or services which have been specifically mentioned in the mark description. The description must contain only those items in which the trademark is being used as of now as it shall be required to be proved during the registration process through documentary evidence. In case description of the trademark is such which covers more than one class then the description must be segregated in two paragraphs pertaining each to specific goods of a particular class. Needless to say, a separate application must be filed to cover each such description of the trademark is relevant class.

A trademark to be registered must qualify to be registered as per the trademark law. The first condition is that it must be a mark which is not in the category of marks which can not be registered under trademark Act, 1999. The names of individuals, city, bird or animal, color, natural substance, slang, immoral words, etc. or the marks which denote quality or quantity of goods or services cannot be registered. The second condition is that the proposed trademark must not be same or similar to an already registered trademark in India. The registrar of trademark maintains an electronic record of the trademark which is available for public search wherein an already registered trademark or a trademark which is pending its registration can be searched class wise. Before filing the trademark application, a search must be conducted so that efforts and money do not get wasted on a trademark which does not belong to the applicant. The search can be performed at www.ipindia.gov.in, the website, before the filing of the trademark application.

An entrepreneur invests an enormous amount of money in developing a brand, and it is always a wise thing to evaluate the feasibility of brand registration first. It is always good to seek an attorney opinion on the possibility of trademark registration. An attorney report to some extent indicates the probable outcome of the trademark application.

To file a trademark application, a trademark attorney is appointed through a form TM-48, which is in the form a power of attorney for the limited purpose of filing the trademark application and to deal with the registrar of the trademark for and on behalf of the applicant. In the case of the proprietor, the form should be signed by the proprietor. In the event of partnership firm by any partner and in the case of LLP any designated partner can sign. In the case of a company being the applicant, the TM-48 can be signed by a director who has been expressly authorised by its board of director for this purpose. Proper stamp duty must be paid on execution of Form TM-48, which for most of the states is fixed at Rs. 100.

After the appointment of an attorney to file a trademark application, the applicant must furnish all relevant information to prepare the application for trademark registration, trademark specialist team at Setupfiling have developed a simplified questionnaire to capture all necessary information in one sheet of paper.  As the application is processed based on the information furnished by the applicant in the trademark application it needs to be authenticated by way of an affidavit, as the affidavit deals with the user-ship date more specifically hence it is also known as the user-ship affidavit. In case the application for the trademark is being filed for a logo, or it is a device mark then the colour image in JPEG format is also required to be filed.

Well after the first seven steps are performed now is the time to file a trademark application, a trademark application can be filed in offline mode as well as the online mode through a trademark attorney/trademark agent. In case the application is filed online by a trademark attorney then it is signed electronically by the said attorney through his class-3 digital signature. The applications filed through online mode is live immediately after payment of government fee and same can be found in public search. The applicant can start using a symbol TM over its mark which is a symbol to depict and declare that the trademark has been claimed and filed for registration. There is a prescribed government fee for the filing of trademark, which as of now is at Rs. 4500 for start-ups, Individuals and MSME and Rs. 9000 for other categories of applicant like firm, LLP or company etc. The professional fee for filing one application under one class for trademark registration in India is Rs. 1,500 plus 18% of GST.

 

The application filed as per above step is then examined by an independent examiner appointed by the trademark office, the examiner is required under law to scrutinise the application as per trademark act 1999 and the rules made thereunder and issues an examination report. The examiner if satisfied with the application can accept the application and recommend for its publication in the trademark journal, which is a weekly e-publication by the trademark office in India. In case the examiner is not satisfied he objects the registration of application and records his objection in a report known as examination report and calls upon the applicant to file a reply to the objections raised by the examiner within a period of 30 days from the receipt of the examination report. If no reply is filed within 30 days of receipt of the examination report the application of trademark is marked as abandoned.

Trademark Registration Process The examination report is normally dispatched to the address of the applicant, however, since it is dispatched through ordinary post there is likely hood that it may not get delivered to the applicant. The applicant must remain watchful and keep track of the status of the trademark at the public search facility of trademark department. After receipt of the examination report, a suitable reply must be filed with a specific response to each objection raised by the examiner. The response must be supported by legal interpretation and authoritative judicial decisions. A specific request should be made for a personal hearing in case the registrar of trademark remain not satisfied with the reply to the examination report filed by the applicant. Please contact us for the professional and legal drafting of a reply to examination report as soon as you receive the examination report, or you come to know that the same has been issued.

As explained earlier a specific request for personal hearing must always form part of the reply to the examination report, and if such a request was there in the reply filed the registrar calls for the personal hearing of the case and intimate the date of hearing to the applicant and also display the date of hearing fixed on the website of the trademark. The applicant must attend the hearing along with its trademark attorney with proofs of ownership, user-ship date, and relevant and binding judicial pronouncements/judgement. In some cases, a written argument can also be filed along with an affidavit for final consideration of the registrar of the trademark.

After the successful resolution of Trademark Registration Process all objections raised by the examiner /Registrar, the application is advertised in the trademark journal by the registrar. In case no opposition is filed for the mark within 90 days or 120 days in the case of time extension provided to the opponent from the date of publication, the mark is registered after the refusal of opposition if any.

The last step in the Trademark registration procedure is the issuance of trademark registration certificate. which is issued in soft copy these days. the certificate of registration can be downloaded from trademark website. The trademark registration is valid for a period of ten years from the date of its application and can be further renewed for any number of times by paying the required renewal fee. The average time taken to register a trademark ranges from 9 -24 months.

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