A trademark popularly known as brand name, is a visual symbol in the form of a word or a device or a label applied to the commercial goods or service to enable the consumer public to identify one trader's goods from similar goods of other traders.
What is a service mark ?
Under the TradeMarks Act, 1999 registration of " service mark " can be done. Such " service mark " can be used as a trademark but applied to services rather than goods i.e., Banking, Communication, Education, Financing, Insurance, Chit Funds, Real Estate, Transport, Storage material treatment, Processing, Supply of electrical or other energy, Boarding and Lodging, Entertainment, Amusement, Construction, Repair, Conveying of news or Information and Advertising.
Whether registration of TradeMark is compulsory under the Act ?
No. Registration of a trademark is not compulsory. But for better protection it is advisable to register a trademark.
How to acquire a right of property in a trademark ?
A person may acquire a right of property in a trademark in the following modes : a) By use of the mark in relation to particular goods; or b) By registration under the Act; or c) By assignment or transmission of the right from another person
Whether the proprietor of an unregistered trade mark can initiate legal action?
Yes. The proprietor of an unregistered mark may bring legal action against the subsequent user by filing a civil suit for 'passing off action on the basis ' prior user' Furthur he can lodge criminal complaint also under the provisions of the Trademarks Act.
Whether 'transborder reputation' of a foreign trademark has been recognised in India ?
Yes. Due to increasing globilisation of trade and industry the 'transborder' reputation of a foreign trade mark has recently been recognized by various High Courts in India and the Supreme Court of India. The Indian TradeMarks Act makes no distinction between foreign and Indian brand names and advertisement of a foreign mark in india is sufficient to establish the user in india.
What are the different stages involved for obtaining registration of a trademark ?
a) EXAMINATION STAGE : Application will be examined by the examiner of trademarks at Trademark Registry the examination report will be communicated to each Applicant or Agent or Attorney by quoting objections, if any, for acceptance of the application. b) ENQUIRY STAGE : After receipt of Examination Report, a personal hearing may be requested by the applicant in order to overlook the objections by producing documentary evidences during the hearing. Thereafter order will be passed in the application by the registrar. c) ADVERTISEMENT STAGE : If the application is found to be acceptable, then it will be advertised in the Trade Mark Journal ( Offical Gazatte of the Trade Marks Registry ) to invite opposition, if any, from the public within the prescribed peroid of four months. d) OPPOSITION STAGE : ( If any ) This stage will arise only in cases when an opposition is filled against the registration of a particular trademark. If there is no opposition, then the mark will be registered.
The renewal of registration of a trademark should be made for every ten years under the present Act.