Nov 19,2020 | 8 min read

"Benefits Of Having A Registered Trademark And Ways To Protect It" By Adv. Vasu Vishesh Bhatia

What is a Trademark?

In simple terms, a name or emblem that represents the company is a trademark.

A visual emblem such as a word signature, a name, a device, a label, a number, or a combination of colours used by the trademark owner to distinguish products or services or other articles of commerce from other similar goods or services originating from different undertakings.

A trademark can be a term, an emblem, a logo, a brand name, a wrapper, a packaging label, a tagline, or a combination thereof, and is used to distinguish its own goods and/or services by producers or service providers. It is used to separate the goods or services of the owners from those of their rivals.

Why Should You Register Your Trademark?

The time, money and effort that goes into creating a reputable brand name that is respectable and trustworthy are beyond measure. The goodwill associated with a certain trade name holds value much beyond the commercial value assigned to it and may take years, or even decades to build. This could be misused or misappropriated by bad actors. Therefore, protecting your trademark by registering it is the wise thing to do in the long run. Unlike the legislation of various other countries, registration of a trademark is not mandatory in India. An unregistered trademark is also protected and has certain benefits. However, an unregistered trademark does not possess the statutory right of infringement. A registered trademark, on the other hand, possesses a statutory right against infringement, as opposed to just common law remedy. Hence, it is advisable to get trademark registration owing to its evidentiary value and the incentives provided.

1. Trademarks Create Immediate Value:

In addition to generating immediate value, few business assets rise in value. The more your company grows and strengthens the greater the brand's appeal. Businesses are continuing to use their trademarks in ads, product packaging, and customer relations. Customers associate logos with each aspect of your business, and it can be fatal to confuse it with another business. A legal trademark can be purchased, sold, registered, and used to secure a business loan as a security interest. A registered trademark is a must if a startup hopes to grow, sell, merge, or raise funding.

2. Trademarks Last Forever:

You may be aware that rights for intellectual property, including patents, have a shelf life. Drugmakers have years to market their pharmaceuticals before they can sell cheaper generics to other companies. Trademarks will last for forever, as long as the rights holders file an occasional renewal form. Nothing lasts longer as far as company assets go and offer more long-term benefits than a trademark. In 1896, Pepsi first registered way back. Trademarks are an advantage that will last as long as you live.

3. Trademarks Are An Effective Communication Tool:

Trademarks can communicate intellectual and emotional qualities and messages about you, your organization, and the prestige, goods and services of your company within a single brand or logo.

4. Trademarks are Extremely Cost-Effective:

The cost of registering your trademark is minuscule compared to the benefits that trademark registration brings to the table. Additionally, there are fee concessions offered to startups that reduce the cost significantly.

5. Prevent Competitors from Registering a Similar Trademark:

The sooner you file your trademark, the more you will be covered. A rival or any other entity does not register any trademark that is identical or similar to a registered trademark under the Trade Marks Act, 1999. If you don't file, if any firms violate your intellectual property, you will have little or no legal protection. Registering your trademark would also confirm that you do not already have the same or similar trademark.

Judgements That Demonstrate the Benefits of Registration

1. In Shyam Steel Industries Limited vs Shyam Sel and Power Limited and Ors., the following observation was made:

Section 17 of the Trademarks Act, 1999 read with Section 28 thereof provides that when a trademark is registered, it confers on the proprietor thereof the exclusive right to use it. Section 28 adds a rider that such registration would also give him the exclusive right to use it concerning the goods or services for which it is registered. It imposes a condition that such right could be exercised only if the registration is valid and also subject to any provisions of the Act.

Section 31 clarifies that the registration of a trademark shall be prima facie evidence of its validity.”

2. Brilliant Public School, Bhattarai and Ors. vs Brilliant Public School, Sitamarhi, the court observed as follows:

“The right conferred by statute under Section 28 of the Act is the exclusive right to the use of a trademark concerning the goods or services in respect of which the trademark is registered. The provision under Section 28 (1) creates not only right but also further provides the right to obtain relief in respect of infringement of the trademark in the manner provided under the scheme of the Act.”

3. Indo Shell Cast Private Limited vs The Registrar of TradeMarks and Ors., the court made the following observation:

“Under Section 28(1) of the Act, subject to other provisions of the Act, the registration of a Trade Mark gives to the registered proprietor exclusive rights to use the trademark concerning the goods in respect of which the trademark is registered. We, therefore, uphold the contention of Shri Muthukumaraswamy learned senior counsel that exclusive right to the trademark 'INDO SHELL' had been conferred upon the 2nd respondent under Section 28 of the Act. A licensed proprietor is given the right to exclusive use of the trademark concerning the products or services for which the trademark is registered. It is therefore not very material as to whether the MOU or the follow-up agreement are silent on this aspect of the matter or as contended do not confer exclusive rights upon the second respondent concerning the trademark.” The court disregarded the fact that the MOU has been silent on the use of the agreement and stated that the trademark registration held value exceeding the same.

This speaks to how useful registering a trademark can be to prevent infringement.

How to Register Your Trademark:

1. Trademark Search:

This search aims to check if your business name or logo is identical to other trademarks that are already registered. Generally, this search is carried out by the trademark agent or attorney with the Trademark Office to verify if there are any similar trademarks already registered in that particular class. Two kinds of search exist: online and offline. You should have all the searches completed. You can proceed to the next step once it is discovered to be unique.

2. Trademark Application:

The trademark attorney will draft a trademark application based on the findings of the search carried out, provided your business name/logo is found to be distinctive. You need to change yours if someone else has the same or identical trademark. Or if you are of the view that the trademark is rightfully yours and you use it even before the registration of another party's trademark for a long time. As soon as you file a trademark application form, you can start using the TM symbol.

3. Trademark Registration:

Cost: Government fees are Rs. 4,500/- in case of Individual/ Startup/ Small Enterprise (it would be 9,000/- in all other cases).

  • The Trademarks Office will first check your application to see if it’s already been taken. If it has, a trademark objection will be raised.

  • If it has no objection, it makes an advertisement in the Trade Marks Journal.

  • If there is no opposition from other businesses in the next four months, your trademark is registered around six months later.

Webliography:

  1. https://patentinindia.com/trademark-registration-india/#:~:text=If%20properly%20used%20and%20promoted,in%20the%20brand%20or%20symbol.

  2. https://www.entrepreneur.com/article/235887

  3. https://thetrademarksearchcompany.com/5-key-benefits-why-are-trademarks-important-for-your-brand/

 


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We provide consultancy in Corporate, Commercial and Real Estate transactions, with a focus on Property and Company Due Diligence, Transaction Structuring, Company Incorporation & Post Incorporation compliances, Commercial Agreements, Civil & Criminal litigation, Family & Divorce Matters and General Corporate, tax matters. We also advises clients on Intellectual Property issues such as registration of trademarks, opposition, assignments etc.

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