Any entity’s brand name is an established or spotted trademark through which it can be recognized. A trademark is protected against being taken, used unfairly or copied by trademark branding. It is a business’s most valuable asset and gives the organisation structure and legal protection. A company’s name, brand, product name, label, logo, domain name, etc. are all protected by trademarks. Start-ups have a number of issues while managing their trademarks, such as delays in the legal process, keeping track of trademark infringement, lengthy legal procedures, more costs, increased competition, and a lack of administrative staff, among others. Additionally, an organisation needs to be guaranteed so that a third party cannot use a similar trademark and the customer is not misled about the origin of the goods by the similar trademark.
BASICS OF TRADEMARK PROCESS AND REGISTRATION IN INDIA
Starting with trademark searches, many businesses especially the start-ups are unaware of its significance. It is crucial to have a unique brand name, and a TM search aids in determining whether similar trademarks are already in use. It also provides a clear image of the trademark’s position and serves as a safeguard against the likelihood of trademark litigation. The importance of conducting a trademark search can be attributed to the fact that it helps one avoid future legal proceedings and hassles that could have been easily avoided by just determining if the mark in question previously existed or not. One can find out whether there are any potential conflicts and registration problems by searching and manage to steer clear of the traps.
The next step is to submit a trademark application to the Trademark Registry India. Following the filing of a trademark application, the examiner reviews the inconsistencies, which can take anywhere between 12 and 18 months. In case of no objections, a mark is allowed to be advertised and if an examination report is issued, a response must be filed within one month from the receipt of the examination report failing which the application is “deemed to have been abandoned” by the Applicant. If the Trade Marks office is convinced with the response filed, the application is advertised in the Trademarks Journal. Alternatively, in case the Examiner has further objections, a show cause hearing would be offered to the Applicant. The examiner has the option to accept the trademark unconditionally, subject to certain conditions or to object to it. The applicant may ask for a hearing if the response is rejected. The trademark will be published in the Trademark Journal if it is approved. The step of publishing is incorporated into the trademark registration procedure to give anyone the opportunity to oppose to the trademark’s registration. In the four months following publication, if there is no opposition, the trademark will be registered. After trademark registration and publication in Trademark Journal, a registration certificate with the Trademark office seal is issued.
CHOOSING A STRONG TRADEMARK
People can differentiate a start ups or any entities goods or services from those of its rivals with the aid of an appealing trademark. It is a crucial intellectual property for any company since it prevents rivals from utilising identical names or trademarks. How closely a trademark may be linked to the good or service you’re providing is the key determinant of its strength. The general rule while choosing a trademark is that the less association your mark has with your product, the more powerful your trademark is. For instance, Google or Xerox are fanciful words and has no inherent meaning by themselves. The weakest terms are generic ones since they lack distinctive characteristics. Such challenges may lead to the revocation of your trademark or a major restriction of your protections, rendering your trademark useless.
The most important requirement is distinctiveness, which means the mark should be able to distinguish a product from other products on the market. It is the innate ability to set your goods and services apart from those that offer the same goods and services. The degree to which a trademark is descriptive of the nature, components, consistency, and functions of the goods and services affects its inherent distinctiveness; the less descriptive a mark is, the more likely it is to be so.
THE REQUIRED DOCUMENTATION, GOVERNMENT FEES
- The Trademark Rules, 2017 u/r 10 and 11 deals with the regulations governing filing of fees and forms for the purpose of Trademark registration in India.
- Form TM-A application is required for registration of trademark, collective mark, certificate mark, series of Trademark for specification of goods or services included and one or more than one classes.
- The fees for start-ups or MSME’s for registering a trademark in India in one class is Rs. 5000/- for physical filing and Rs. 4500/- for online filing. The forms along with the requisite fee for filing them are set out under First Schedule.
- A start-up may also file for registration of its trademark through the assistance of IP Facilitators under the government’s SIPP Scheme, whose fee will be borne by the Office of the Controller General of Patents Designs and Trademarks, Department for Promotion of Industry and Internal Trade, Government of India.
IMPORTANCE OF TRADEMARK PORTFOLIO MANAGEMENT
Trademark portfolio management (TPM) is the most important aspect for any start-up. It refers to the correct, timely, and strategic administration of all legal processes associated with a trademark or service mark, from its registration and maintenance until its full protection in the desired jurisdictions. Thus, with perfect and effective trademark portfolio management, a start-up may always maintain the safety and profitability of the business associated with its brand. The trademark/service-mark of a start-up or MSME’s must be kept eminently distinctive in the market space, its public image must not be damaged by an infringer using the trademark without authorization to sell identical or similar merchandise, and the trademark must be timely renewed and diligently guarded in the appropriate jurisdiction.
BENEFITS OF LICENSING AND MONETIZATION TRADEMARK
Licensing the trademark and allowing another company to use it for particular goods and services is quite typical. Consider sports teams that grant permission for other businesses to use their team name and mascot on items like sports drinks, car washes, restaurants, or celebrities who licence their names so they can be shown on clothing lines or beauty products. Co-branding is when two businesses use each other’s trademarks and strengths to benefit both. Businesses can generate significant new cash streams by monetizing their trademarks. But to take full advantage of the opportunity, start-ups and growing businesses must look for ways to protect every asset they create especially their trademarks.
CONCLUSION
In this era of tech revolution, where there is a possibility of a start-up especially in country like India, these new entities need to beat the odds in order to succeed and with constant competition, start-ups cannot afford to make costly mistakes. They may contribute to the security of their new company and continue progress by efficiently protecting the IP from the beginning. They can better position themselves to draw in investors, partners, suppliers, and other stakeholders by safeguarding their start-up against potential legal problems. As stated above, registering a trademark in India doesn’t take much work but only requires some due diligence. It is a simple procedure that is crucial for protecting the company’s brand identity. By monitoring its status, you can learn more about the status of a trademark application. If you intend to sell your products internationally in the future, you must register your trademark in all of the countries where you intend to expand your business before any other firm may register the same trademark in those countries.
REFERENCES
- https://ipindia.gov.in/writereaddata/Portal/News/312_1_TRADE_MARKS_RULES_2017__English.pdf
- https://ipindia.gov.in/faq-tm.htm
- http://www.ipindiaonline.gov.in/progress/startup.aspx
- https://www.pib.gov.in/PressReleasePage.aspx?PRID=1880465
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