Don’t forget unprotected names and ideas are out there in the public domain, so anyone and everyone is at liberty to take them and use them for their own benefit. Intangible assets of a company like trademarks are at times neglected due to critical day to day operations. However, the brand name is undisputedly one of the most valuable assets of the company and hence it should be protected using trademark registration.
Trademark signifies a mark which can be represented in a graphical form and which is capable of distinguishing goods and services of one person from that of the other. A mark is a visual symbol, which may consist of a word, device, signature, letter, numeral, label or a name written in a particular style. Subject to certain conditions, a trademark symbol may consist of the name of a person, living or dead. It may also consist of a sound mark.
Though the trademark is merely a brand name it offers various exclusive rights to the owner. In this competitive business era, many people try to gain benefits out of other’s goodwill. To ensure your goodwill is not misused by anyone, consider trademark registration. While you are trying to secure your brand, logo or any other mark, you must be sure about its correctness and uniqueness. Five points are mentioned below which should be considered before making a trademark application in India.
While choosing a trademark, first ensure that it distinguishes your business from that of the others. If you are about to start your business or it is relatively new, make a wise choice as it will be for a long span of time. Some businesses tend to choose marks identical to those of famous brands to mislead the customers but this is not a fair practice and should not be resorted to.
Whether it is a name or a logo, efforts should be made to keep it original and not a replica of any existing trademark. Try to conduct a rigorous trademark search to ensure that your mark is not confusingly similar to any existing one. It is necessary to make sure that you are not infringing someone else’s trademark which is already registered, as it will render you and your business open to legal hassles.
Once registered a trademark will last for 10 years before renewal so you should think about where you want your business to be in another five to six years’ time. Also, you should be clear about the points you wish to define from your trademark for the customers. It should be unique and compliment well with the company’s name, its mission, and its vision.
Select an Appropriate Class
When you are planning to get the trademark registered, the first step is to choose the appropriate class under which the chosen mark of the product or business is to be applied for registration. The government of India has classified under 45 categories, which under the general terminology is referred to as classes. Each class discusses specific goods or services under which the trademark for a particular product needs to be searched.
Selecting the right class can at times be confusing so the technical expertise of a legal professional may be needed. While you are applying for the trademark registration, it is required to make a description of goods and services. You can make the description as per your choice and even customize it as per the needs of the business. One thing should be kept in mind that once the application is filed, you cannot change the class or the description. It is further advised that the description should not be restricted and should also cover the products on a long term basis. Try to make your application cost efficient and providing adequate protection.
Colored LOGO OR B&W
Many applicants are in a fix whether to apply for a logo in colors or in black and white. Once you are choosing a specific color scheme for your logo, you cannot use a logo with a different color scheme and seek its protection. You must file a new application, to protect the logo with a different color scheme. For this, you have to incur the application cost and the professional fee.
However, in the case of a blank and white logo, you are securing the pattern and not any particular color or colors so you are at liberty to use any color in trade. Usually, with the rapidly changing trends, this approach is frequently adopted by start-ups and businesses as it is cost-effective as well.
THOROUGH AVAILABILITY CHECK
It is pertinent to ensure that the mark or the logo you have chosen for registration is available for application as you might face hurdles and objections if application is already filled for a similar or a resembling mark. In India, you must follow IP India Online, to conduct a trademark availability search for free. IP India is the official Department of Industrial Policy & Promotion that provides patent, design and trademark services in India.
You can also approach a professional for their opinion as they do thorough intensive research which covers database of all applications and provides extensive research report for your perusal. You must ensure availability under each class if applying under multiple classes.
CLAIMING USER DATE
If you have been using a trademark for a long period of time, you must provide the user data in your application. The reason is very clear as the user date is the date since when the mark is being used for commercial purposes and if two similar applications are filed, the preference will be given to the applicant claiming prior user date. The rule of prior to using is followed by the trademark law in India rather than first to claim.
Supporting documents, registration certificates, and online presence must be provided to substantiate the claim of the user date. Remember, claiming the wrong user date at any time is unlawful. Also, you are allowed to protect the mark to put it to use in the future as well by making an application mentioning “proposed to be used”.
The trademark registration is a very crucial step for any business. So, it is important that the application is completed properly in all aspects as it cannot be altered after filing, particularly on the points discussed in this article. Therefore, it is suggested to engage an expert to assist and advise you at all levels of filing your trademark registration application.