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Trademark is to be considered as an Identity for your product or service. People might not remember the name of the organisation producing the product or rendering the services but do remembers the Name, Logo, Colour, or Shape. Trademark made such an impression in the mind of people that they start using the brand name to denote the product. Normally all the new entrepreneurs fail to protect their Intellectual property at the beginning stage of their business and start using some Name or logo on their product or service without filing a trademark with a view that will file it later when we will get established into the market, but this is a risky matter because if you plan to have trademark later that gives an open opportunity to the competitors to take the advantages of hard work done by any business entity to promote their brand either by filing for the same or similar brand name and restricting the business entity to do the business with name so created by them or by using the same or similar name to trade upon the hard work and goodwill and narrowing the market share of the entity. Our team of highly dedicated experts is ready to help you in protecting your trademark / brand name / logo by getting misused and infringed by others.
There are total 45 classes of Trademark, which is further divided into two category goods and services. Out of these 45 classes, class 1 to 34 is categorized for goods and rest class 35 to 45 as services.
Legal Protection is the basic and the most important objective behind trade mark registration,it gives you the right to own your registered trademark and prohibits anyone from using it without prior permission and if anyone uses
Your business rivals will always have some thing similar to your product or service, but if you have trademark they can't have any thing similar to it as this is infringement of trademark and can end up into legal compe nsation.
We generally feels that there is no some monopolistic competition in the market regarding the goods and services available as there are many persons providing same sort of services and trading in same sort of products available
A trademark once registered is valid for next 10 years form the date of filing. And can be renewed very easily after the completion of the validity period.
Name of an organization is the legal and market identity of it. As anyone can opt for similar name and can be your business rivals
Tag line or slogan is highly connected to the product or service. It creates a different impression in the mind of every reader or listener.
Name of the product is its identity, for example if one says BISLERI the next thing strike in the mind is packaged in drinking water and nothing else
Logo or image associated with the product is an important part for product identification equally important as the name of the product.
The Word mark is most popular category of trademark, also known as Standard Character Trademark. Where the words are simple written irrespective,
This Category of mark is also not in India and is not recommended to small organizations. A mark filed for protection of a specific colour or combination of colours associated with the Product or Service.
This is second most popular category of trademark, also known as composite mark. A mark made us with some artistic creation, combination of any word,colour, image,design,pattern and sty
This is the most latest and rear category of Trademarks in India. If a sound is distinctive and plays a key role in identifying with the goods I service associated with it can be registered as Sound mark
This Category of mark is not very common in India. A mark filed to protect the shape of goods to create differentiation with the product associated with in the market among the consumers.
Three Dimension mark or 3D marks are now becoming popular in India. A mark used to protect the product appearance or substantial packaging or three dimensional symbols of any product
The process is defined as follows:
The official fee for trademark filing is divided into two categories one is for Individuals / Small Business / Startups is INR 4,500- only and for all of the others such as Companies / LLP / Partnership / Trust / Society etc. is there INR 9,000- only
A foreign citizen or a foreign company can file a trademark in India either through WIPO under the MEDRID Protocols or can directly apply in Indian Trademark Registry. Official fee is to be calculated as per the method opted for trademark filing in India by a foreign citizen or a foreign company. Fee of WIPO can be calculated on WIPO website whereas a foreign citizen or a foreign company has to pay similar official fee for trademark filing in India i.e. INR 4,500- and INR 9,000- Respectively.
Our advice to all foreign citizens and foreign companies looking for trademark filing in India only, they must not use the WIPO filing system instead they should direct file a trademark in Indian Trademark Registry that will be economical compared to WIPO filing fee and in case of multination application one must use the WIPO filing system.
Trademarks in India can be filed by the following persons:
Trademarks in India can be filed by the following persons:
There could be so many adverse scenarios and if your trademark full fills a few conditions there is no harm done. But before understanding these scenarios we must need to under stand Trademark Infringement.
Section 29 of the Trademark Act,1999 has defined Infringement of a Registered Trademark. In summary of this section it can be said a person not being a registered owner or authorized person to use a trademark, use it for the similar goods or services or both is infringing the rights of the registered owner of trademark.
There are some penal provisions for trade mark infringement and are defined under section 102,103,104 and 105 of the Trademark Act,1999 and could further lead to Imprisonment or Fine or Both.
There are total 45 classes in Trademarks. Goods and Services are divide into these 45 classes as Class 1-34 covers the goods and rest Class 35 to 45 covers the service industry. For finding out an appropriate trademark class one can use the TM Classification tool available on IP INDlA website and can be reached at https://euipo.europa.eu/ec2/ alternatively one can avail the trademark classification service form an attorney or can contact us for the same.
If the goods or services are falling under different trademark classes one must find out the availability of brand name in all of these trademark classes and should take an appropriate decision accordingly. In such scenario we always recommend that if the mark or brand name seems ava ilable in all relevant trademark classes; one must apply trademark in all of these classes at earliest and if the to brand name or mark is unavailable or any similarities are existing one must avoid such a name.
If the products or services are falling in different trademark classes one must file trademark in all these classes. There are certain reasons behind that a to few of them are as follows:
If a trademark or brand name is already registered or applied by someone and you were willing to apply the same it is highly recommended that one must consult to a trademark attorney before applying such a trademark as this could lead to future legal complications and one need to check the following:
No, attorney is a law graduate and practicing in legal work such as sending legal notices and attending court and tribunal hearing and is enrolled with Bar Council where as a Practicing Company Secretary is enrolled with Institute of Company Secretaries of India. A practicing company secretary can be a lawyer but he can’t do legal works as an attorney the ICSI has directed the guidelines in this regards and defined clearly that a practicing company. secretary can’t do any other and profession or business other than the profession of company secretary as defined in the Company Secretary Regulations 1982.Practicing Company secretaries are categorized as a Trademark Agent even if they are law graduate.
As trademark scan be applied by many persons but there are certain advantage of having a trademark attorney for trademark filing. A few of the following advantages are as follows:
A person who is has attended the age of 21 and is a law graduate and enrolled with a Bar Council can register himself with Trademark Department for trademark filing and attending the matters on behalf of his clients.
No, any trademark marked for hearing can’t be skipped by any means. Once a mark is flagged for hearing that should be attended else the hearing officer can refuse or can treat the application as abandoned or can take any other action as he deemed to the fine.
These days trademark department is conducting virtual hearing and only the authorized and registered attorney to the trademark can attend the hearing. It is advisable to not get influenced by anyone who is approaching and demanding any fee for trademark hearings and promising you to get the mark cleared
Unlike all other online platforms Alonika has a dedicated team of Trademark Attorneys and for trademark related matters and experienced professionals and have filed 5000+ trademark applications. The attorneys working with in Alonika are certified from WIPO, IP India, NLU’s and Other LAW Institutes. The team of Alonika conduct detailed analyses before applying a mark and capable in predicting the possibility and probability of registra tion even before filing. The team keeps a track on trademark filed by them and share timely in updates to the applicants and define further course. The main object of Alonikais not to misguide the applicant and con him. thus there is a possibility that we might say “THE MARK IS NOT AVA ILAB LE” or “DO NOT FILE SUCH A TRADEMARK” most of the times instead to convey and make you believes that it is “AVAILAB LE”. All other online platforms they are charging huge fee’s for objection reply in a range of INR 2,000/- to INR 3,000/- and where no government fee is involved for objection reply of a trademark. At Alonika we charge only INR 750/- for objection reply of trademarks filed by us. Alonika is offering a range of services for trademarks in India compared to any other online platforms such as conducting official hearings and litigations, drafting of various agreements. trademark as sign ments and trademark rectification etc.
Trademark search is very important, as most of the trademark applications so filed got stuck due to the Objection raised by the registrar either on the grounds of existing similar name or claiming a generic name. Search plays an important role in getting the trademark accepted in an early phase.
Goods and Services under trademarks are divided into 45 classes. Class 1 to 34 is defined for the products / goods and class 35 to 45 is defined for services. Classification helps in ascertaining the appropriate class for goods or service to be adopted for trademark filing.
Yes, a trademark can be filed in all the classes but this is not advisable until unless the applicant is actually not working in any of the good or service of the respective trademark class.
Yes, Trademark Registration provides monopoly, but with some restrictions and not for the entire class. A Trademark only provides monopoly rights on the goods / service description stated in the application only, no rights will be given on other goods / services belongs to the same class. This was settled in many cases by The Supreme Court.
A trademark can be filed by the applicant himself, or by a Registered Trademark Attorney or by a Registered Trademark Agent or by a practicing Company Secretary.
Appointing an Attorney is always advisable and recommended; we also assign the Trademark Filing to Attorneys. Filing done by applicant is never advisable; an applicant generally is not familiar with the provisions of the act and other requirements. And We personally don’t recommend to get it filed by Registered Trademark Agents and Company Secretary as they can file the Trademarks and can manage the other works with the registry and tribunals but they can’t protect and take parts in legal proceedings (Sending notices or representing the matters in the courts) in case of any infringement or legal issues as they can’t practice as an Attorney.
No, a registered trademark gives right only with the respective class in which it was filed and registered. Priority can only be claimed in other class if there are sufficient evidences to justify the claim of priority so raised.
This basically depends upon the applicant and his futuristic vision of working. If the applicant’s business is a start, we advise him to select the most appropriate class for his products or services and file the trademark in that relevant class first, as for startups filing trademarks in many classes could be an expensive matter. And if the applicant is well established in the market, we recommend for trademark filing in all the relevant classes.
No, Trademark once registered, to be renewed time to time; failing in renewal will lead to removal of Trademark.
Yes, an expired trademark can be renewed. Only if renewal application is filed within 6 months of expiry accompanied with renewal fee and surcharge. Restoration of Expired Trademark application is also allowed if the application for restoration is filed within next 6 months after the grace period of 6 months from expiry, subject to the discretionary power of registrar.
Using of similar Trademark is termed as infringement of Trademark. There are legal options available to protect the Trademark infringed by others.
Online business is in class 35 and garments are in class 25, we suggest for filing the trademark applications in both the classes. If this feels an expensive matter then go for class 25 first and later on for class 35. As class 35 will protect only the online business not the relevant product, so one can’t claim any rights on the articles falling in other class. For example, A is selling garments online in a Trademark XYZ filed in class 35 and B is selling garments offline and online (from other portals) having trademark XYZ, here A cannot restrict B to use the trademark XYZ for garments as A having right only for selling goods online but not on the goods itself, and B can restrict A if he uses the Trademark XYZ on garments.
No, the Registration Certificate generated is not valid for legal purpose or filing trademarks abroad. A request should be made to the registrar for grant of Legal Certificate accompanied with respective fee for legal certificate.
Word mark and Device mark are not the same, as protection under the both are different. A Word Mark protects the WORD only whereas a Device Mark protects the Device as a whole. These days generally people comes to us with a view that, by protecting a Device Mark containing the Word and other artistic things, colour, images etc. also have protections on the Word and the other contents of the device separately, which is not correct. A Device mark provides protection on the device as a whole, one can’t raise any claim on the parts or elements of the Device Mark separately, until they have filed different trademark applications for every part of the Device. In simple terms one can’t claim any specific right on every element of the device until they have trademarks for every element separately.
This was settled in so many cases; some of the famous cases are:
The Trademark Registration is the registering of visual symbols which can be a word, name, device, label, digits, etc. Trademark registration in India helps the candidate or the trademark owner to safeguard his logo or trademark. Trademark registration also helps to evade duplication within the trademarks.
The easiest way to get trademark registration done, involves the first step as “selecting a name then doing a trademark search, after that filing an application for the trademark registration”. Then filing the required documents like the name of the trademark or address. Then the application is examined after that the trademark is published in the Indian Trade Mark Journals. Lastly, the issuance of the trademark registration certificate.
Trademark registration is starting from Rs. 1000/- + Govt. fees basically starting from Rs. 5500/- only.
In case one uses a registered trademark without the authorization of the trademark owner, then it is considered trademark infringement. It is an offense under the Trade Marks Act,1999. Under this, the registered trademark owner can issue a notice to the infringer to stop the use of the mark.
Even after this, if the infringement is continued, then action to cease all goods that violate the Trade Marks Act could be initiated. And the claim for the damages can be initiated.
A registered trademark is valid for 10 years from the date of trademark application filing, which is to be renewed prior expiry of trademark registration.
Company or domain registration will not protect your brand identity. To protect your company’s identity, you need to get trademark registration.
Symbol “TM” can be applied after filing of a trademark application. After registering a trademark a symbol “R” must be used. The ® symbol may only be used in connection with the goods and services mentioned on the registration certificate.
No, Trademark registration is valid in territorial limits of India. But a registered trademark can be used as a base for trademark registration in other countries.
The term ‘objected’ implies that the particular trademark application has been examined and a report generated as well, laying down the objections against the registrability of the mark. Examination of a trademark means that the mark would be checked to see if it complies with the relevant provisions of the Trademarks Act and is fit to be registered. In general, the two main provisions of the Trademarks Act which come into play at this stage are Section 9 and 11 of the Act (called absolute and relative objections respectively). These Sections, broadly speaking, lay down that a trademark should either be inherently distinctive (and not similar to any earlier existing mark) or should have ‘acquired distinctiveness’ through its usage. Hence the Examiner would analyze the trademark in question (primarily in light of the two aforementioned sections) and generate a report mentioning the objections if any and also list similar/identical third party marks if any, during which the status would reflect “ objected ”
This is a very simple and preliminary stage wherein the Trademark Office asserts that all the formalities required to be observed while filing a trademark application have successfully been observed by the applicant and the application would soon proceed to the next level. The formalities here might imply submission of appropriate information or documents like Power of Attorney, User date affidavit or any other required document. If the status shows “formality check fail,” it naturally implies that there is some deficiency in observing the formalities, in which case, it is better to check with the Trademark Office as soon as possible to determine what is required, to fulfill the deficiency and proceed to the next level. There is no prescribed time frame in any of the above scenario. Where the status is “formality check pass,” one has to await the natural progress to the next stage which, currently, is seldom delayed.
EDP, as most of you would be aware, stands for ‘Electronic data Processing.’ In the recent years, the Trademark Office has been striving hard to go the techie way with digitization of records aiming at transparency and automation. Hence when applications are filed, the Trademark Office, broadly speaking, would, sort all applications received, sent them to the EDP section for scanning, uploading and data entry after which the actual legal procedure (like examination, advertisement) begins. Hence when a particular application is still with the EDP section, this status might be reflected in the Indian Trademark Office website. Many a time, the Trademark Office realizes that there are certain errors in data entry/processing with respect to a particular application and in such a case, the particular application finds its way back to the EDP section and the online status of that application reflects “sent back to EDP.”
There is no set time frame during which an application lies with the EDP section. On the same note, it is not an alarming status wherein the applicant of that particular application is bound to take some action, for, once the data entry/processing is completed, the application automatically progresses to the next step, examination. But at times, an application might remain stagnated with EDP for a considerable time and in such cases, the applicant might, approach the Trademark Office to check on it. But such a need seldom arises these days with the Trademark Office being quite efficient in its operations.
The term ‘marked for exam’ implies that a trademark application has been taken up for examination or is due to be examined shortly by the Trademark Office. The term “examination” per se means that the particular trademark would be examined to see if it satisfies and overcomes the objections enunciated in the Indian Trade Marks Act, 1999 (what we call “absolute and relative grounds” under Section 9 and 11), only after which it proceeds to advertisement and ultimately registration.
The term “opposed” means that a third party, has found the mark objectionable primarily in light of Section 9 or 11 or both (and any other provisions of the Trademarks Act), intimates the same in writing to the Trademark Office and requests for its refusal. Section 21 of the Trademarks Act 1999 clearly elucidates about opposition. Simply put, a mark predominantly gets opposed either owing to its similarity with an existing mark or due to alleged non-distinctiveness or both.
Once the mark gets advertised, it is open to opposition for a period of four months from the date of advertisement, during which any third party can oppose the mark on the grounds mentioned above. It is important to note that any third party wishing to oppose a mark should intimate the same in writing (through what is called a ‘notice of opposition’) to the Trademark Office within the four month period after which the status of the mark is changed from advertised to “opposed.”
Trademark Registration protects the brand name for the respective products and services only. Any mark cannot enjoy the monopoly over the entire class, so there is nothing to worry about it you can have trademark registration for the same until the mark is well known (like Pepsi, MRF)
Trademark Rectification or trademark cancellation refers to the process through which a person applies for removal of a registered trademark from the Register of Trademarks. An aggrieved person can apply for trademark rectification/ cancellation on the grounds of contravention or failure to observe a condition of the trade mark already entered in the Register or an error in registering the trade mark. Section 57 of the Trade Marks Act, 1999 provides for the grounds for Rectification of the Register. An application for rectification or cancellation of a trademark can also be filed on the grounds of non-use of the trademark for a prescribed period of time after the registration of the trademark. An application for rectification of a registered trade mark is required to be filed before the same Trade Marks Registry where the application for its registration was filed.
Section 57 of the Indian Trade Marks Act, 1999 (hereinafter referred to as \”Act\”) provides for the grounds for Rectification of the Register:
According to the NICE classification, the trademark is classified into 45 categories. Among this, 34 classes represents goods and 11 represents services. Since each class shows a unique category of goods and services, so you should choose the right class for your trademark. The process is carried out, once you select the category/class for your goods/services.
|Classes||Category of trademarks|
|Class 1||Any kind of Chemicals that are used in Industries, science or photography, even chemicals used in agriculture, horticulture and forestry, also the adhesives used in Industry, unprocessed plastics, chemical substances involved inedible substances.|
|Class 2||Any kind of paints or varnishes, any preservative used against rust and damage of wood, metals used in foil and powder form used by painters, decorators or printers, even mordant and colorants|
|Class 3||Substances used in laundry, also cleaning and polishing; and has chemical applications, soaps, perfumes, oils, any kind of cosmetics|
|Class 4||All industrial greases and oils, any kind of lubricants, wetting or binding compositions, all fuels and candles and wicks.|
|Class 5||Medical preparations (Veterinary and Pharmaceutical, including sanitary preparations also, any dietetic substance), baby food, plasters, dressing material, disinfectants, dental wax, preparations to destroy vermin.|
|Class 6||Common Metals and alloys, any material used for metal building; non-electric cables and wires (all of the common metals), pipes and tubes, and other small metal hardware, also ones are included|
|Class 7||Machines and their tools, motors or engines (land vehicles not included), incubators (for eggs), and agriculture machines (hand-operated not included).|
|Class 8||Hand tools, cutlery, razors, and sidearms.|
|Class 9||Any instrument and apparatus used in science, navigation, Photography, Cinematography, optics, weights and measurements, signals, supervision, life-saving and/or teaching, also conducting, transforming, switching, regulating, transmitting or reproduction of sound or images; any kind of magnetic data carriers or recording discs, vending machines(automatic) and any coin-operated apparatus; computers, cash registers, calculating machines and fire-extinguishing apparatus.|
|Class 10||Any kind of medical apparatus including surgical, dental and veterinary instruments and apparatus, artificial limbs or eyes or teeth; Orthopedic articles also included.|
|Class 11||Any lighting, steam generating, heating, drying, cooking, refrigerating, ventilating, sanitary or water supply related appliances and apparatus.|
|Class 12||Vehicles and apparatus for locomotion (in/by land, air or water)|
|Class 13||Fireworks, Firearms, Explosives, and ammunition (also projectiles).|
|Class 14||Any precious metal and its alloy and any goods made of that precious metal or even coated with, jewels and ornaments and precious stones; also chronometric instruments.|
|Class 15||Any Musical Instrument|
|Class 16||Cardboard and paper; any goods made from them; printed matter, photographs and all stationary given that they are not included in any other classes, adhesives (at the household level), paintbrushes, office requisites; teaching material (excluding any kind of apparatus), printing blocks and plastic material for packaging.|
|Class 17||Rubber, mica, gutta-percha, asbestos, gum, and any goods made from these, packing, insulating and stopping materials, extruded plastics, pipes (flexible and not made up of metals).|
|Class 18||Leather any kind of its limitation, any goods from this material, trunks, hides, animal skins, and traveling bags; parasols, umbrellas, and walking sticks also harness and whips.|
|Class 19||Non- metallic building materials, rigid pipes again non-metallic and used for building purposes; bitumen, asphalt, and pitch; monuments, not of metal.|
|Class 20||Mirrors, furniture, picture frames; any goods of wood, reed, cork, wicker, cane, bone, horn, whalebone, ivory, amber, shell, meerschaum, mother-of-pearl or any kind of their substitutes, also plastics given that they are not included in any other class.|
|Class 21||Household utensils and containers (including kitchen), sponges and combs; brushes(excluding paint brushes) and materials included in their making; steel wool and unprocessed glass, porcelain and glassware; also earthenware.|
|Class 22||“Tents, nets, strings, ropes, tarpaulins, awnings, sacks, sails, bags (which are excluded from other classes); stuffing and padding materials; raw textile materials (fibrous).|
|Class 23||Threads and Yarns (textile use).|
|Class 24||Textile and their goods; bed covers and table covers.|
|Class 25||Footwear, clothing, and headgear.|
|Class 26||Ribbons, Embroidery, Lace, and braid; hooks and buttons, needles and pins; artificial flowers.|
|Class 27||Mats, rugs, carpets and matting, linoleum, and other similar materials used for covering existing floors and also wall-hangings which are non-textile|
|Class 28||Sporting and gymnastic articles; games and any kind of playthings given that they are not included in other classes and also decorations for Christmas Trees.|
|Class 29||Fish, meat, poultry; meat extracts; dried, cooked, frozen edibles (fruits and vegetables), jellies, jams; eggs, milk, and its products, oil (edible).|
|Class 30||“Tea, coffee, rice, sugar, tapioca, artificial coffee, and sago; bread, flour, pastry and confectionery; honey, ices, yeast, treacle, salt, baking powder, mustard, sauces, vinegar, spices, and ice.|
|Class 31||Products from agriculture, forest and horticulture, and grains gave that they are not included in other classes; fresh vegetables and fruits; live animals; seeds; plants and flowers (natural); food product for animals|
|Class 32||Mineral and aerated water; Non-alcoholic drinks and beers; fruit juices and drinks; syrups and preparation for beverages.|
|Class 33||Alcoholic drinks (excluding beers).|
|Class 34||Smoking articles, Tobacco, and matches.|
|Class 35||Business Management; advertising; business administration and other office functions.|
|Class 36||Financial affairs, Insurance; Monetary affairs; real estate affairs.|
|Class 37||Repair, Building construction, Installation Services.|
|Class 39||Packaging and storage of goods; Transport.|
|Class 40||Treatment of Materials.|
|Class 41||Providing training; Entertainment; sporting; Education and other cultural activities.|
|Class 42||Technological and scientific services; industrial analysis and research services; development of computer hardware and software and their design.|
|Class 43||Services related to providing drinks and food or temporary accommodation.|
|Class 44||Any kind of Medical services (including Veterinary, hygienic, and beauty services) both for humans and animals; horticulture, agriculture, and forest services.|
|Class 45||Legal and security services; personal and social services.|