Many people often ask –
Can I register my Trademark for free?
How to trademark a logo for free?
However, things aren’t as simple, and it’s impossible to register a trademark without paying the necessary non-refundable government filing fees, as specified by the Office of the Registrar of Trademarks, Government of India.
It’s a distinctive sign that represents an ‘individual’ or a ‘brand’ or an ‘organisation’, and is applied to commodities or articles of trade to identify and distinguish the products and services of one from another. This could indicate a name, word(s), devices, symbols or a combination thereof – For instance, the brand name ‘Nike’ is a trademark; also, Nike’s logo, as well as slogans, are separate trademarks. These marks are capable of identifying the brand, its goods and services, and are used to sell their products and distinguish them from the products of their competitors, say, Reebok.
Trademarks can be ‘registered’ as well as ‘unregistered’. While registration isn’t mandatory in India, it’s advisable for getting better protection. Unregistered marks are essentially ‘free trademarks’, meaning, you don’t have to pay any filing and registration charges. The difference between unregistered and registered trademarks is legal protection that they get.
The primary legislation governing Trademarks in India is the Trademarks Act, 1999, which is the legal mechanism under which trademark registration is done, and which provides protection against fraudulent use of marks. So, the right to initiate infringement proceeding under the Act is only allowed to the owners of the registered trademark under the Act.
Unregistered trademarks don’t have any legal benefits, but there might be some protection available under the common law regarding passing-off. While registered marks have a common law remedy, unregistered marks might get relief under the Common Law. However, in the case of the latter, the use and reputation of the mark have to be proved.
A remedy for passing off is based on the fact that no one can be allowed to make a profit (sell services or goods) by pretending that they are someone else. In a passing-off suit, the original owner must show proof of:
In a passing-off action (unlike trademark infringement under the Trademarks Act), similarities aren’t sufficient. The owner of the mark must prove misrepresentation and the fact that the consumers are deceived. Interestingly, actual use of the goods and services in India isn’t necessary to action passing-off. In the case of Whirlpool (1995), cross-border reputation was considered to recognise the brand’s recognition, goodwill and international reputation.