Frequently asked Questions on Trademarks
1. What is a trademark?
Trademark gives identity to a brand; it is a recognizable sign, word, design or an expression which is used to identify the goods or services of a seller from those of others. A trademark helps in securing the brand name from being used or misused by the competitors; it also helps prevent confusion and manipulation of consumers, who come to associate with quality and attributes of a distinct brand in particular. A trademark is mostly located on the label, a voucher, or on the product itself.
2. What is the difference between goods and services?
Goods are tangible products, Like computers and bottles.
Services are activities performed for the benefit of someone else, such as IT services or catering.
The difference between goods and services is quite confusing. But you can distinguish between them by asking yourself if your customers are paying for a product or paying you to perform a specific activity? If your customer is paying you for a product, such as a bottle or a computer, then you have goods. However, if your customer is paying you to perform an activity, such as catering or IT services, then you have services. You may list both goods and services in an application. You must list the specific goods/services for which you want to register your trademark.
3. What are the different types of trademark?
There are various types of trademarks based on their categories; they are as follows:
- Product Mark
- Service Mark
- Collective Mark
- Certification Mark
- Shape Mark
- Pattern Mark
- Sound Mark
- For more details on types of trademark go through https://www.quickcompany.in/articles/trademark-basics#typetm
4.What can be registered as a trademark?
Name, word, symbol, color, phrase, shape, signature, letters, slogans, surname, packaging can be trademarked which rightly gives a unique image of the company, brand or individual that separates the product or services of one trader from the other. Anything that gives a distinct identity to the product and services which thereafter distinguishes one trader from the other.
5. What cannot be registered as Trademark?
The idea, state flags & hallmarks, process, similar existing marks, generic words cannot be trademark as they fail to meet the minimum requirements for the trademark registration.
6. How to select a good trademark?
The selection process of a proper trademark the following points are to be taken care of while creating a trademark:
- In-depth research of the existing trademarks and thorough study of the database of trademarks.
- Analyzing the products and services that the company offers.
- Thinking of out-of-the-box, innovative, creative fancy and arbitrary mark which strikes consumers and potential customers.
- Avoiding deceptive, disparaging and offensive language.
- You can also take the advice of the trademark attorney and consult the Trademark Manual of Examination Procedure (TMEP) for further help.
- Review the trademark based on its activity in the marketplace.
- The trademark should be easy to pronounce, recall and well acquainted with the public.
- Also, the trademark should give the feel of the quality product and a visible outpost of the company.
- For more details on trademark, selection goes through https://www.quickcompany.in/articles/how-to-select-a-proper-trademark
7. How to check if the trademark already exists?
In order to check if your trademark already exists or not, you need to do a thorough research of the Trademark Database that is relevant to your product or service category. You need to also go through the Trademark Registry to find out the existing trademarks and those which have expired.
8. Who can apply for trademark registration?
Any person who claims to be the owner of a trademark, he/she needs to submit the application mentioning the related goods and services associated with the company.
9. How do you apply for trademark registration in India?
To apply for trademark registration you need to follow few steps involved in a trademark registration process and they are given below:
- Search Trademark Database
- Filing of TM-1 Application
- Using your Trademark (TM sign)
- Issue of Examination Report
- Advertisement in TM Journal
- Trademark registration.
10.How is a trademark designated in India?
An unregistered trademark whose application is under process is designated as TM, a service mark is designated as SM and a registered trademark is denoted as ®.
11. What is the difference between TM, SM and ®?
The first thing that you notice about any brand name is that they have a small superscript, either it is ™ or ®.
Basically, the ™ sign is used when a trademark registration file is under process for that brand name; there is no such prohibition in India if you start using a ™ sign with your brand name before filing a registration application.
Now as you know the procedure to register a trademark is quite lengthy, it almost take 2 years for a trademark to get registered after you file a registration application, and once registered, you can start using ® symbol which also indicates that your brand name is fully secured now, as in the case of Flipkart Using the symbol 'R' unless the mark has been registered is illegal in India.
12. Trademark Offices in India?
Territorial Jurisdictions of TMR Offices
- MUMBAI: The State of Maharashtra, Madhya Pradesh, Chhattisgarh and Goa
- AHMEDABAD: The State of Gujarat and Rajasthan and Union Territories of Daman, Diu, Dadra and Nagar Haveli.
- KOLKATA: The State of Arunachal Pradesh, Assam, Bihar, Orissa, West Bengal, Manipur, Mizoram, Meghalaya, Sikkim, Tripura, Jharkhand and Union Territories of Nagaland, Andaman & Nicobar Islands.
- NEW DELHI: The state of Jammu & Kashmir, Punjab, Haryana, Uttar Pradesh, Himachal Pradesh, Uttarakhand, Delhi and Union Territories of Chandigarh
- CHENNAI: The state of Andhra Pradesh, Telangana, Kerala, Tamilnadu, Karnataka and Union Territories of Pondicherry and Lakshadweep Island
13. What are the requirements for trademark application?
Requirements for filing a trademark application:
- The name, address, and nationality of the applicant. If the applicant is a partnership firm, the names of all the partners. Also, mention whether any minor is a partner.
- If the applicant is a company, the country or state of incorporation.
- A list of goods and services for which registration is required.
- Soft copy of the trademark to be registered.
- If the mark contains or consists of non-English words, a translation of those words into English is required.
- Date of first use of the trademark in India, if at all used
- The power of attorney simply signed by the applicant (no legalization or notarization is required). For Indian clients, a power of attorney to be executed in 100 Rs. Stamp paper and signed by the applicant. The power of attorney is not required at the time of lodging the application and can be submitted later with no additional cost.
14. How long does it take to register a trademark?
It takes almost 12-18 months to register a trademark, and it can extend up to a year, however, you can start using TM while your application is in process. The time took usually depends on the filing process and the legal issues that arise from the process.
15. My trademark expired, what to do now?
If your trademark has expired, then you need to renew the trademark if you want to retain the older trademark that you had. For renew of the trademark after expiration the owner of the mark can file TM-10 within six months after expiration and pay a certain amount of charges for renewing the trademark. If the time-lapse of renew is also missed then, the last hope is to file TM-13 within six months to a maximum within a year after expiration to request for restoring the trademark rights. For more you can refer https://www.quickcompany.in/articles/trademark-renewal
16. How and when to renew a trademark?
The registration of a trademark is valid only up to a period of 10 years after which it can be renewed. Renewal of a trademark preserves those rights that are available only to registered trademarks. If the proprietor fails to renew the trademark, then he/she loses all the protection that comes with the trademark. The Trademark Registry in India grants the registration of a trademark which is valid for a period of 10 years and needs to be renewed from time to time. For the renewal of trademark, the proprietor has to file a form TM-R, which is an application for renewal before the registrar. This application has to be filed within 6 months from the date of expiration of the registration. If within 1-3 months from the date of expiration of the registration, a renewal has not been filed then the registrar sends a notice reminding the proprietor of the upcoming renewal date. Another chance is given by the registrar to renew the trademark within 6 months from the date of expiration of registration by filing form TM-10 and by paying the surcharge. Failure of paying the required fees will cause the removal of trademark from the register.
17. What does a registered trademark contain?
The details of registered trademark is recorded in the Trademark Registry of India and maintains the details attached to it like the class, the products and services related to it. It also contains details about the owner of the trademark.
18. What is trademark infringement?
Trademark infringement is breaking through(violating) private rights of the trademark owner which is caused by unauthorized use of an already existing (similar) trademark or service mark on related goods and services. This occurs when the "infringer" unknowingly or intentionally uses an identical or similar trademark which is owned by another party. However, the owner of a trademark has the right to carry forward legal proceedings against the infringer for violating exclusive rights of the proprietor.
19. What are the sources of Trademark Law?
- The national statues, i.e., the Trade Marks Act, 1999.
- International multilateral convention.
- National bilateral treaty.
- Regional treaty.
- The decision of the courts.
- Office practice reduced in Manuals and guidelines and rulings of the Courts
- The decision of Intellectual Property Appellate Board.
- Text books are written by academician and professional experts.
20. What is a service mark?
This type of trademark is used to identify and distinguish the services rather than the products provided by any enterprise. The service mark is for the intangible products which include the action of helping or doing work for someone; it can also be a system supplying public needs such as transport, communication or other utilities such as electricity, water, etc. Service marks are also applicable for the routine maintenance or repair work. The Service marks have their particular symbol which is SM and not TM.
21. Can foreigners apply for trademark in India?
Yes, foreigners can apply for trademark in India. India has declared certain countries as convention countries, which afford to citizens of India similar privileges as granted to its own citizens. A person or company from a convention country, may within six months of making an application in the home country, apply for registration of the trademark in India. If such a trademark is accepted for registration, such foreign national will be deemed to have registered his or her trademark in India, from the same date on which he or she made application in the home country.
22. What is Madrid Protocol?
Madrid System is a system for the international registration of trademarks, and it is governed by two bodies, Madrid Agreement & Madrid Protocol. Under the Madrid Protocol, nationals of any signatory may secure protection in countries and jurisdictions that are contracting parties to the Protocol based on a pending application or registration in the country or jurisdiction of origin. Know more about International Trademark
23. Are Trademarks, Copyrights, and Patents the same things?
No, Trademark, copyrights, and patents are not the same things. However, Trademark, Copyright, and Patents are often confused to be the same. Although each one is used to safeguard intellectual property rights, they are fundamentally different from each other and used for different purposes. Copyright law is applicable to people who have developed original work in the field of visual art, performance art, music, literary work, dramatics, movie script and certain another type of intellectual work. The law can be applied to both published and unpublished work, although for a limited period. The law also gives the creator the exclusive right to use and distribute the content from his or her original work. E.g. Content written by Chetan Bhagat is exclusively owned by him and cannot be copied by anyone. This was only made possible due to Copyright law. The patent is another form of intellectual property right, which is granted by a government or licensed authority to the inventor of a product, technology or manufacturing process for a certain duration (usually 20 years), during which the right to produce, sell and use given process or product remains exclusively with the inventor. E.g. Android technology is patented by Google, phone technology is patented by Apple. A trademark is a registered name, logo, mark or symbol that represents the service, product, and goods of a company or an organization. It is a symbol that drives brand loyalty and distinguishes your goods and services from that of your competitors. E.g. Maggi ®, Flipkart®, Google ®.
Copyright - Protects an original artistic or literary work
Patent - Protects an invention
Trademark - Protects brand names and logos used on goods and services.
24. Do I have to hire an attorney when filing to register my trademark?
A trademark application can be filed by your own. Attorney’s are needed for complex cases that might arise after you file your trademark. Trademark is a simple thing to file and hence, you can even file the trademark application online to save time and money. Also, you can even start the trademark process by using online services and then later on switch to trademark attorneys, if needed. For more info, you may contact Team Quick company on the following link https://www.quickcompany.in/contact.
25. Can I trademark a logo I designed myself?
Yes. Your logo is part of your brand to identify your business and consists of a design that is generally used by you and your company on your products or printed materials related to its services. It's important to protect that brand, and by extension, the logo that represents it. The logo may be a design by itself, a design with letters or words, or a design consisting simply of stylized words or letters.
26. Do I need to be using my logo in business before filing a trademark application?
No, there is no such pre-condition for filing a trademark application. However, the only benefit you get if you are using the logo before is that it helps you to prove better to the trademark authorities that you actually own the brand and also the same is now a well-known mark formally accepted in the market. What is said above is really important, because having an edge in trademark registration is very important Not every trademark that is filed is registered and hence, during the registration process if you have any kind of edge or a valid proof that your trademark is well accepted in the market, and it has some value, and then you will have more certain chances that your brand will be registered compared to others.
27. How Do I Check the Status of My Application or Registration?
If you have applied for the trademark registration and wondering about the status of your application, then you must check the status by using the E-Register website. This will help you to know the status and related information about your application, and also make you aware of the pending applications and those which are registered. This system is quite handy as it is there to help you 24 hours for all 7days.
28. What is the penalty for Trademark Infringement?
Trademark Infringement can cost you a great loss as legally it is stated that if any person falsely claims to have a trademark registered or uses an unauthorized trademark and even if sells product or services under an illegal trademark then, he/she is punishable with imprisonment and fine charges over it. For more visit https://www.quickcompany.in/articles/trademark-infringement-in-india
29. Why your trademark will be rejected?
There are certain grounds based on which trademarks are rejected, they are as follow.
- Lack of Research
- The Descriptive Marks
- Generic Terms
- The Misguiding Mark
- Official Terms
- Existing trademarks
30. Someone infringed my trademark how do I proceed?
The brainstorming sessions combined with your creative skills finally gave you a trademark that meets up with all the elements for trademark registration and now you have a situation where your hard work is at stake. You have the rights to take action against the infringer only if you have the evidence of the infringement, and your trademark is rightly registered with TM office. The agents of infringer along with the infringer can be sued for it is considered as a crime. Before you get too worked up make sure that the claim of infringement truly exists, hence you need to review a few trademark facts. once you are sure of the duplicity of the trademark then to start with drop in letters to the infringing business asking them to stop using the mark as you never know they might be unknowingly doing the same. Before sending the letter, you need to check up with the attorney and review the letter as well. If the infringer refuses to give up the trademark usage, then it's the time you take action by filing case with the TM office and then there are penalties that are applicable for the infringer if the case filed is proven true of its kind.
31. Can I apply to register my Trademark through QuickComapny.in?
Yes, you can. Quick Company’s standard package starts Rs 5,499.00 including the government filing fees. Click here to get started in applying for your trademark through QuickCompany. Quick Company is one of the largest online trademark filing firms in India and for a very low cost, you can elect to have them represent you in filing a trademark application. Therefore, you gain the expertise of an experienced trademark firm in helping you get the best protection possible and defend your rights.
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