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Trademark is a mark that has distinguishes goods/ services of one person from others. Generally, Brands, Labels, Word-marks, Taglines, logos can be protected as trademarks by the proprietor of the respective mark.
An Applicant who is a proprietor of the mark can apply for trademark. The trademark can be filed in the name of an individual or a legal entity such as a proprietorship firm, a partnership firm, an LLP, a private limited company, a public limited company can also file the trademark application through its authorized signatory.
An application for registration needs to be filed with The Registrar of Trademarks offices, located at Mumbai, New Delhi, Chennai and Kolkata.
An application of trademark along with representation of proposed mark need to be submitted to The Registrar, Trademark office. A duly executed power of attorney is essential if the application is being made through a legal representative, such as an Advocate. An application can also be filed through e-filing portal provided on official website of the Trademark office.
Every Trademark is classified under NICE Classification that consists of 45 different classifications out of which classes 1-34 belongs to goods and classes 35- 45 belongs to services. Applicant has to elect appropriate class while filing the trademark application.
After filing the application and making of necessary payment, an applicant receives an application number and filing date. After receipt of application, the Registrar conducts a formality check pass and Vienna codification trademark and further sends to Examiner after being passed through EDP section. Examiner examines the trademark application in the light of provisions under The Trademarks Act and decides about acceptance or rejection accordingly. Examiner who scrutinizes the contents of applications and accepts the application if no discrepancy is found. Else, the Examiner sends an objection letter to Applicant and demands for a reply in stipulated time period. Examiner may demand for a hearing in case if the reply received from Applicant is not conclusive. After hearing, Examiner either rejects or grants the Trademark registration. In case of rejection, Examiner sends a rejection letter to Applicant. In case proposed acceptance, the registrar advertises the trademark on their official website before acceptance and waits for third party objection for a time period of three months. In case where no third party objection is received, then the Registrar grants the trademark to the Applicant.
The prior art search is generally done before filing a patent application. It is not mandatory, but always advisable to conduct the prior art search before filing the patent application. The prior art search presents a worldwide patent-non patent literature scenario in comparison to Novelty, Non-obviousness and Industrial applicability aspects of the invention for evaluating its patentability in future. There are various types of searches such as Novelty Search, Infringement Analysis, Validity analysis, Invalidity search, Freedom-To- Operate search that are conducted in this regard.
The prosecution of trademark application generally takes about 18-30 months in India from filing till grant. In case of any objection from the trademark office or interested person, the time line might be further extended to two years plus from the date of filing of the application. Please note that the timelines are mentioned on the basis of our prior experience, and they may differ from case to case.
Initially, the registrar of trademark grants the trademark for a stipulated timer period of 10 years. However, the trademark has to be annually renewed thereafter by paying necessary trademark office fees. The trademark can be renewed for ‘n’ number of years.
TM suggests that the trademark application has been filed with trademark registry but still under prosecution for grant. After grant of the trademark from Trademark registry, the applicant is eligible to use status R.
Unregistered trademark is a mark that is in use since some time however for which no trademark has been filed with the registry. An action of passing off can be taken against an infringer of unregistered trademark on the basis of honest concurrent use.