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09
Sep
17
Non-Conventional Trademarks in India

Conventionally trademark means a mark which is capable of being represented graphically and which is capable of differentiating the goods and services of one person from those of others. Trademark is any word, logo, symbol, phrase or design adopted and placed on a product that is offered for sale or on a container that is to identify its source.

The concept of Non-Conventional trademarks is becoming more and more popular over the years. Non -conventional trademark is a distinct type of trademark that does not belong to the conventional class of trademarks. Just as conventional trademarks these trademarks also uniquely identify the commercial origin of products or services. However getting these trademarks registered is often difficult as compared to traditional marks.

Further, Non-conventional trademarks may be visible signs Like colors, shapes, moving images, holograms, positions etc or non-visible signs like sounds, scents, tastes, textures etc.

Examples of Registration of Non-conventional trademarks

Color

Trademark registration of color has always been a topic of dispute. As the trademark act does not specifically provide for the registration of the single color however it does not expressly exclude the notion.

In India for the purpose of trademark registration of any color theory of "Color Depletion" is followed. This theory is based on two facts - Firstly there is a concern that with the limited number of colors, to grant exclusive rights to colors would sooner or later deplete the available stock and, thus, be anti-competitive. Secondly, if a color alone was protectable, trademark infringement suits would lead to lengthy litigations over 'shades' of color which would slow down the trademark registration process. However, the theory only bars the registration of the seven basic colors but not any shade thereof. Thus it is possible to obtain a registration for the combination of colors.

Sound

The purpose of the sound trademark registration is to uniquely identify the commercial origin of products/ services by means of an audio clip. The musical notes that can be represented in the form of musical notations are acceptable whereas the sounds which require onomatopoeic or sonogram representation are not eligible for trademark registration.

Smell

Trademark registration of the smell is not a very popular concept in India. Due to the absence of graphical representation the number of smell registrations is very less as compared to sound registrations and color registration.  Generally the representation of the smell is verbal and the verbal representation of the smell is not sufficient to distinguish one smell from the other. Further, the representation of smell can also be made through chemical formulae.  However this concept is challenged on the grounds that a chemical formula does not represent the smell of the chemical itself and that few people would be able to get a sense of the smell based on its chemical formula.

18
Aug
17
Restoration of the Expired Trademark

A Trademark is a “brand” or “logo” associated with the product. A properly used and promoted trademark helps the product to establish a brand image in the minds of the people.

It is very crucial to obtain trademark registration as it gives protection to the business entity against the other companies who might commence their activities using identical or similar marks. Trademark registration can also be obtained for a business name, distinctive catch phrases, taglines or captions.

The trademark once issued is valid for the time period of 10 years and after the completion of 10 years, the trademark issued get expired thus the trademark owner is required to get it renewed.

Following steps shall be taken to renew the trademark when it gets expired-

  1. Initially, the owner of the trademark is required to file TM-10 within 6months from the expiration and pay a specified amount of charges for renewal of the trademark.
  2. As soon the application made is accepted, the owner of the trademark is required to advertise the trademark in the trademark journal in order to inform the concerned about its restoration and invite objections from the people.
  3. In case there are no objections received within the specific timeframe, then the trademark is re-registered and enclosed within the trademark information. The trademark reregistered will again be valid just for the tenure of ten years.

Procedure for Trademark Renewal of Associate in Nursing terminated Trademark in India:

  1. In case the owner of the trademark does not make any application regarding the renewal of the trademark, minimum 1 month and maximum 3 months before the expiration of the last registration of the trademark, the Registrar himself could inform the businessman or his agent about the approaching expiration of the mark.
  2. In case the trademark owner or his agent fails to pay the prescribed trademark renewal fee before the expiration of the last registration of the trademark, then the Registrar is empowered to take away the mark from the register and advertise it within the official journal. However, the Registrar cannot take remove the mark from the register, if Associate in a Nursing application is filed by the trademark owner for payment of the renewal fee within six months of the expiration of the last registration of the trademark.
  3. In case no application regarding the renewal of trademark is filed within six months of the expiration of the last registration of the trademark, then the trademark expires.
  4. An application for the renewal of the trademark shall be filed within one year from the expiration of the last registration of the trademark. Further, the Registrar will consider the request for restoration of the terminated trademark scrutinizes the interest of differently affected persons.
  5. In case the terminated trademark is restored by the trademark owner, a notice will be sent by the Registrar to businessman concerning such restoration and therefore the same will be publicized within the Official Journal.
  6. Through the advertisement published in the journal regarding the restoration of the trademark, the Registrar invites the objection against restoration. In case no such objection is detected then the trademark is rehabilitated within the register for successive ten years.
  7. If any objection is raised, then the Registrar conducts the hearing and after hearing each the parties it passes a call on whether or not to revive the trademark or not.
  8. If someone else applies for registration of the terminated trademark, then the businessman needs to file Associate in nursing objection against the third party who has applied for registration of the terminated trademark.

Getting the trademark renewed helps the businessman to protect itself from duplicity and help them to maintain the exclusivity of their brand.

11
May
17
Why Trademark is Important for Your Business?

Trademark is a form of intellectual property. Trademark reserves the right to the owner and protect all of its ideas and inventions. It is like a standard signature which shows the first impression in the market. Trademark registration in India is a good option for all the company to register its trademark.

Trademark can be logo, symbol, or word which let you stand differently in the market. It is another way of referring to brands. Consumers first identify the trademark for their purchase. Trademark creates first reputation of any brand for Business growth. Following are reasons why is trademark important for your Business   

Trademarks is an effective tool of communication- By looking at the trademark audience identifies the emotional attributes of any company. Trademark reveals the message of the Business Brand. It creates intuition about product and services of the company. Trademark or design do not need exactly related to the type of product or service. It can be in any language English, Chinese, Spanish, Russian, Arabic or Hindi.

In crowded market place it’s hard to distinguish your business from your competitors. It is an efficient commercial communication tool to capture customer attention and make your business, products and services stand out. People should be able identify particular brand’s service by looking at the trademark. On social media trademark creates particular image of the brand.

Trademarks are the valuable asset which can be appreciated in value over time. It is mainly  for Business growth. It provide value to the core business. Trademarks can lead the way for expansion from one industry to another industry for eg. from personal care to clothing or eye ware. Trademark can lead to the acquisition of your business by a larger corporation. It can be used as a property asset, similar to real estate, that can be bought, sold, licensed (like renting or leasing) or used as a security interest to secure a loan to grow your business.  

Trademarks make things easier-Trademark is an asset which makes hiring easier. It helps to inspire positive feelings in people’s minds. Due to this, employment opportunities are more attractive to candidates. Collecting certain facts Employee can have better retention and better feelings for the brand and the products and services offered.

Provide uniqueness to a brand -Trademark is a unique asset used for particular brand product or service. Trademark is particular logo that should catchy in each aspect of visually as well as audible or would you rather go for a logo that is hard to remember or understand and doesn't describe your brand.  Choice would be simple and everyone would go for the former option.

Trademark keeps the brand from crowd- It’s uniqueness keeps the logo catchy to the audience. It is basically it has everything mentioned above, then it gives your brand an edge over anyone else. Depending upon the logo, anyone can tell which brand does a product belongs .

Trademark protects your product name- Company having registered can use it publically to show ownership over your product. Registered trademark provides the right to use it on all the products registered under your ownership and it also proves that the product belongs to you and you have all the rights to sell, modify or use that product however you want.

08
May
17
Importance of Copyright over Trademark

We often confuse between copyright & trademark yet they have a few purposes of contrast which should be clarified before further registration. We need appropriate information about what the most ideal ways we can secure our ideas are. Knowing there are heaps of potential outcomes of your ideas being stolen by others in the market when you have something new and crisp that can undoubtedly make your business achieve the main, an appropriate comprehension of these terms appear to be fundamental. To start with the fundamental actuality must be clear in your mind that a copyright and a trademark secure are very unique.

What is a Trademark?

Trademark offers identity to a brand; it is a recognizable sign, word, outline or an expression which is utilized to distinguish the products or administrations of a dealer from those of others. A trademark helps in securing the brand name from being utilized or abused by the contenders; it also helps prevent confusion and manipulation of consumers, who come to associate with quality and attributes of a distinct brand in particular. A trademark is mostly located on the label, a voucher, or on the product itself.

What is a Copyright?

'A copyright can mean a law that gives you property rights for things you have made, be it a work of art, a photograph, a poem or a novel. The copyright law awards you possession with a various rights like:

  • The right to reproduce the work
  • The right to distribute copies
  • Right to display the work publically anywhere
  • And the right to prepare a derivative work

Advantages of Copyright over Trademark

  1. A copyright is automatic whereas a trademark has to be registered in order to get real protection.
  2. A copyright holder can keep or prevent others from utilizing his/her work while the trademark holder can't or may not keep others from utilizing the check publically.
  3. A Trademark is protected by both federal and state laws whereas in case of copyright, the laws are federal
  4. Copyrights can protect your work for the term of your life in addition to an additional 70 years. In the event of trademark, it is restricted to 10 years and has to be renewed after every 10 years
  5. Online infringement of copyright can be immediately taken care of under the Digital Millennium Copyright Act, however, this is not the situation with trademarks since it has a long legal process, both government, and state.

There are similarities between the two that have a tendency to confuse individuals:-

  • Both Trademark and Copyright gives the rights to the owner to prevent others from using their work
  • Both are protected with complex laws
  • They can exist all the while in some mark or design, even in shapes, colours or sizes.

Conclusion

Individuals totally makes trick of themselves by blending the two and may even wind up losing the market they as of now have. One ought to know how he can ensure protect his assets or respond to someone for claiming infringement. Another reason is that one who has the information can easily take advantage of those who don’t. Utilizing the distinction can help one in taking great business choices regarding product launches or for social media strategy.

29
Mar
17
Difference between Trademark and Design Registration

Trademark is a word, sign, logo or an expression which identifies a particular brand. Trademark is an intellectual property. It is a unique signature adopted by company or business to adopt. Trademark provides an exclusive right to the owner of the brand.

Trademark registration protects word or words, logo, symbol, utilized in commerce to distinguish in one source of goods and services of another. It does not need to be innovative. But it should be new. Trademark protection is for 10 years and It can be renewed by paying an additional fee.

Design is a diagrammatic representation. It is mainly designed by professional, engineers, Software Programmer etc. Designs are patented for infringement.   

Following features should be present in a particular design

  • New or original
  • Not published
  • Significantly distinguishable from known designs or combinations of known designs
  • Devoid of a scandalous or obscene matter.

Design registration protects the innovative of an article of design of an article of manufacture. It protects the physical appearance of the product. This is mainly with the product you are planning to sell to the public. Design protection is also for a 10-year period and can be extended by five years. After it, the design becomes public property and can be used by anyone.  

Registration of design is under the design act. No prescribed procedure has been made relevant to the design registration. There are certain acts formed regarding the intellectual property such as Patent act, Trademark Act, Design Act which does not entertain any opposition regarding the registration process.

Unregistered vs Registered trademark

Statutory rights are provided to the registered trademark according to the trademark act. Unregistered trademark is also not denied under legal recourse and representation.

Statutory rights are also provided in the case Design act. This rights might not be the same rights as that of more powerful trademark act. There can be remedial action in case of wrong commitment. In that case, the plaintiff have to provide the registered design was made use by him as a trade which with the purchasing public has created an association with goods and services and resultant goodwill.      

According to The Trade Marks Act, 1999 “trademark” means a mark capable of being represented graphically and is capable of distinguishing the goods or services of one person from another person. This may include shapes of goods, their packaging, and combination of colours. Registered Trademark’s purpose is to indicate a connection in the course of trade between the goods or services and some people having the right as proprietor to use the mark.

According to The Designs Act, 2000 “Design” means only the features of shape, configuration, ornament, pattern or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye.

20
Mar
17
Trademark Rules 2017, Trademark fee

On 6th march, 2017 Government of India has replaced Trademark Rules 2002 with an Introduction of Trademark Rules, 2017.New Rules that has simplified trademark filing process. There has been an increase in Trademark fee for corporate entities.

Application fee of new trademark registration has been increased or certification mark, collective mark or series of marks for goods and services has been increased to Rs. 9000 in the case of e-filing and Rs.10000 in case physical filing.

The reduced fee of Rs.4500 for e-filing and Rs.5000 for physical filing as prescribed fee in case of individual start-up and small enterprises

Small enterprise in Trademark Rules 2017

Mostly enterprises engaged in manufacture or production of goods. Investment where the plant and machinery are not specified for a medium enterprise.

There are some enterprises which are engaged in providing or rendering services, it is also an investment in equipment is not more than the limit specified for the medium enterprise under a certain clause of trademark Rule 2017.

Start-up as per Trademark Rule, 2017    

Start-up is recognized as a competitive entity or authority under Start-up India Initiative. In a case of a foreign entity which fulfils the criteria for turnover and period of incorporation/registration as per start-up India initiative and submitting the declaration to that effect. 

Expedited process for Trademark Registration

There has been the introduction of an expedition under Rule 34 by the Government. In that case, only e-filing expedited trademark processing is allowed. The Government fee for trademark processing is Rs.20000 for individuals, start-ups and small enterprises. In the case of all other entities, the fee for expedited trademark processing is Rs.40000.

Trademark fee for Opposition and Rectification

Fee of notice of opposition under Section 21(1),64,66 or 73 or application for rectification of register under section 47 to 57, 68,77 or application under rule 99,103, 140 the fee is application is Rs. 2700  for e-filing and Rs 3000 that is also for physical filing.

Trademark fee for Renewal

Trademark fee for renewal of an existing trademark registration is Rs.9000 for e-filing and Rs. 10000 in a case of physical filing.

Trademark fee for Restoration and Renewal

The application for renewal and restoration must file under section 25(3),25(4) for each class. In case such of application trademark, renewal and restoration would be Rs.18000 for e-filing and Rs.20000 in case of physical filing.

Trademark fee for Search Certificate

Trademark fee for issue of Search Certificate is Rs.9000 for e-filing and Rs.10000 in case of physical filing. The expedited issue of search certificate would Rs.30000 for e-filing.

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