DILIGENCE BEFORE YOU DECIDE YOUR MARK : IPR

A trademark is nothing but a sign or a mark serving some purpose for its owner. As per a definition, a trademark is a sign capable of distinguishing the goods or services of one enterprise from those of another (e.g. Pepsi, Phillips, Britannia, Reliance). Likewise, any mark associated with a service is known as a Service Mark (e.g. DTDC for courier services). One’s mark should be such that his audience is able to pick out the services provided under the mark merely by looking at them. This is how a global business impact can be successfully built.

In India, a trademark is registered under the Trademarks Act, 1999 which empowers whosoever is so desirous of registering their brand, to seek the registration in respect of that desired mark.

The truth of the matter is that a well chosen and an intelligent brand is always considered as a most effective tool of attracting the consumers and adding a value to the mark. In this article, we intend to guide the reader through the whole process of choosing a strong brand, commensurate not only to the stature but also to the legal provisions existing in that regard.

Your trademark is something that is the future and the certainty of your business. It establishes an identity so to say. Thus, for businesses that are start- ups, it is a rather diligent decision to make and for established ones, it is their responsibility to protect the same. The purpose of every brand mark is to become unique and in order to be unique, one is under the obligation to create such a mark which must be capable of distinguishing his brand from others. Thus one can register any mark as a trademark, provided that the trademark office in which you are seeking protection considers it “distinctive” for the goods or services concerned.

Under the Trademarks Act, 1999, a “trademark” may consist of:
A distinctive and invented name (e.g. KODAK, DABUR)
A signature (e.g. Tata, Birla)
A device (e.g. Apple with Apple design)
Letters only (e.g. HCL)
Numerals (e.g. 777 for washing powder)
, or any combination of the above.
Trademarks Act 1999
Attributes of a Strong trademark:
  • REMEMBER that your mark must possess a distinctive character and should be appealing to the eye
  • REMEMBER that your mark must not be a generic word only
  • REMEMBER that an invented word serves as a rather good trademark
  • REMEMBER to cross check your mark’s similarity to other marks in the competitors of the same line of services/ goods
  • REMEMBER to perform a search for similar marks in the records of the Trademark Registry and other available public databases
  • REMEMBER that the mark must not simply indicate a quality, quantity, purpose, value or geographical origin
  • REMEMBER that your mark should not be one which is already in vogue in the trade due to its customary use
  • REMEMBER to keep away from registering surnames
  • REMEMBER that the following cannot be registered as trademarks:
Trademarks Act 1999
  • a mark, the use of which is likely to deceive or cause confusion, or is contrary to any law for the time being in force
  • a mark is contrary to public order or morality
  • a mark likely to hurt the religious susceptibilities of any class or section of the citizens of India
  • a mark containing scandalous or obscene matter
  • a mark, the use of which is prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950 (12 of 1950)
HOW TO PERFORM A SEARCH IN THE TRADEMARK RECORDS
Before registering a mark one can very well check whether the particular chosen mark is already registered or applied for by some other person. A portal has been created by the Controller General of Patents, Designs and Trademarks (CGPDM) to enable an interested person to conduct such a search to check for conflicts.
HOW TO CHECK:
STEP I - Log on to
www.ipindia.nic.in &
Click on the Option ‘Trademarks’
CorporateProfessionals Advocates and Solicitors
STEP II - At the ‘Trademarks’ page click on the option ‘Public Search’Trademark Public Search
STEP III -On ‘Public Search’ page you will be required to enter the mark you desire to check the availability for and then enter the class number depending on the kind of goods or servicescpadvocates
After entering the mark, and selecting the appropriate class, the user will select an option from the Prefix drop down list. One will have to either select “Starts With” or “Contains”. In “Starts With” prefix, the process will search any word starting with the entered keyword. In “Contains” prefix, the process will search any word containing the entered keyword anywhere in the name. Then the user has to hit the button of ‘SEARCH’. On clicking this button, the website produces result of a list of marks registered and in the process of registration.
To SUM UP…
Having regard to the importance of trademarks and service marks in today’s competitive business era, one cannot overlook the importance of registration of one’s mark and brand. Each person is consciously and unconsciously, affected by the impression that a brand creates and each such person categorizes his choice by these names and marks. The strategy for all should thus be to hit on and utilise this very point and make his brand effective.

A critical asset, a trademark should thus be selected diligently lest it creates a wrong or no impression on its users. It should be capable of telling the products it represents from that of its competitors in an efficient yet assertive manner. It can safely be said that, in more cases than not, mere registration of one`s trademark would be of meaningless if a proper care and caution has not been paid to keep the mark unique and remain vigilant of its adoption by others.



For more details , please contact 

Deepika V. Sawhney                              Stuti Bansal
deepika@indiacp.com                             stuti@indiacp.com
+91 9818316936                                      +91 9810203315
+91 11 40622229                                     +91 11 40622240

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