the frequently asked question about trademark process in India.
What is trademark registration?
A trademark is a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises. Intellectual property rights protect trademarks and can be protected by registration.
How can I protect my trademark? what is the trademark application process? At the national/regional level, trademark protection can be obtained through registration, by filing an application for trademark registration with the national/regional trademark filing office in India and paying the required fees. At the international level, you have two options: either you can file a trademark application with the trademark office of each country in which you are seeking protection, or you can use WIPO’s Madrid System. What rights does trademark registration provide? Benefits of trademark registration In India ? In principle, a trademark registration will confer an exclusive right to the use of the registered trademark. This implies that the trademark can be exclusively used by its owner, or licensed to another party for use in return for payment. Registration provides legal certainty and reinforces the position of the right holder, for example, in the case of litigation. How long does trademark registration protection last? The term of trademark registration can vary but is usually ten years. It can be renewed indefinitely on payment of additional fees. Trademark rights are private rights and protection is enforced through court orders. What kinds of trademarks can be registered in India or overall? A word or a combination of words, letters, and numerals can perfectly constitute a trademark. But trademarks may also consist of drawings, symbols, three-dimensional features such as the shape and packaging of goods, non-visible signs such as sounds or fragrances, or colour shades used as distinguishing features – the possibilities are almost limitless. Trademarks can be registered before even starting a business? Yes. Should I register my company’s name or logo for trademark registration? You can't register your company name and logo in the same application; so many businesses will submit multiple filings — one for the company name, company logo, product name, product logo, etc. Can I do trademark registration of my name? Can I Trademark my personal name? Yes, you can register your name as a trademark provided the Trademark Office of your country or the country for which you are seeking protection considers it "distinctive." Can I own a trademark and not necessarily use it? As a general principle, once your trademark has been registered it should be used. If your mark is not put to use, its registration is liable to be cancelled on the application of a third party that can show that it has not been used. Can sounds and smells be considered trademarks too? As long as it is the sound or the smell, which makes the mark distinctive, the sound or smell could be registered as a mark. However, there is no international obligation to provide for the possibility of registering sound and smell marks and it would depend on the particular national law in question as to whether it is, in fact, impossible to register such marks.
Is trademark registration necessary even when the trademark has been in use for many years? In countries which have a legal system based on common law, "prior use" is generally sufficient for claiming rights over a given trademark in a case of a dispute. In civil law countries, however, this is usually not the case. Even in the first case, it is highly advisable to register a trademark, as registration will reinforce the position of the right holder in case of litigation. Does trademark protection automatically give rights to the related domain name? The process for registering domain names is an altogether separate one from trademark registration. Nevertheless, many countries have reached the conclusion that there is a strong need for taking precautionary measures to prevent conflicts between marks and domain names. You can register a domain as long as if it used as a trademark or service mark. (Service mark is similar to Trademark but it distinguishes service other than the product). When I register a trademark for one type of goods or services, does this automatically give me exclusive rights to use that trademark for all goods and services? Trademark rights (other than those conferred by well-known marks which enjoy more far-reaching protection in the number of countries) are typically limited to goods or services, which are identical with or similar to the goods, and services for which the marks are registered. We suggest registering your trademark in more than one class. Most countries adhere to or apply the system of International Classification of Goods and Services which divides goods into 34 classes and services into a further 8 classes. Can I register my Trade Mark Globally? No, not entirely. TM can be used & protected only in the country of registration. But under Madrid System is a one-stop solution for registering and managing marks worldwide. Pay one set of fees to protect your mark in the territories of up to 97 members. You can manage your portfolio of marks through one centralized system. Can I allow someone else to use my trademark? You can certainly license the right to use your mark to someone else. It must be kept in mind that since marks establish a connection between the mark and the goods, and are often understood as an indication of a certain quality and reputation. It is, therefore, important that the person to whom you have licensed your trademark rights maintains that same connection and the same quality and reputation. If I am exporting do I have to register my trademark in other countries as well? Intellectual property law is basically territorial, that is, right with respect to your trademark is confined to the country in which it was applied for and obtained. Therefore, if you export goods bearing your mark and you have only obtained protection for that mark in your country then your mark is vulnerable in the export market. It is then important if you are in the export business that you register your mark in the countries to which you are exporting or intending to export so that your mark is protected in those countries as well. Please refer to the Madrid system.
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