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Can a Business Owner Skip Trademark Registration?

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The main objective of trademark law is to protect the rights of persons who manufacture and sell goods with distinct trademarks against arrogation by other persons who are passing off their goods fraudulently and with forged trademarks as those of the manufacturers.

Supreme court has shown a distinction between a trademark and a property mark Therefore, the distinction between a trademark and a property mark is that whereas the trademark represents the manufacture or quality of the goods to which it is attached, the property marks denotes the ownership in them as a property mark attached to the movable property of a person remains even if part of such property goes out of his hands and ceases to be his property.

What is Trademark Registration?

Any person can apply for registration of a trademark to the Trademark Registry under whose jurisdiction he is claiming to be the proprietor of a trademark used or proposed to be used by him. In the case of a company, incorporation is in process, anyone may apply in his name for subsequent assignment of the registration in the company’s favor. The application should be in English or Hindi and shall be filed at the appropriate office. Trademark registration performs various functions under modern business condition i.e.

  • Trademark identifies the goods and services as well as guarantees its unchanged quality.
  • It creates a brand image of goods and services.
  • Advertisement for goods and service in the name of the proprietor
  • Ability to file litigation in the court
  • Gives exclusive right of the mark and also protects from importing foreign goods infringe on the trademark.

The trademark to be applied should be easy to spell and remember and the selected mark should be capable of being represented graphically and further should be capable of being distinguishing the goods and services.

The registered trademark confers upon the owner the exclusive right to use the trademark about the goods and services of which the mark is registered. As a trademark is registered to protect a brand. An unregistered trademark means that the protection is required which relies on proving the reputation of the brand, misrepresentation and can create damage to the proprietor concern which is both difficult and costly.

Trademark Registration

Consequences of Unregistered Trademark

A Trademark unregistered may be assigned or transmitted with or without the goodwill of the business concern. Earlier the assignment or transmission without goodwill used to be on a different footing. The trademark Act 1999 has simplified the provisions about the assignment of the unregistered trademark without goodwill. An unregistered trademark does not make a distinction in the crowded place and does not affect the brand image as the consumers are unaware of a brand that whether it is registered or not.

Further, as compared with the unregistered trademark, the registered trademark hits slightly superior in the minds of the consumer and the difference between the two is visible and marginal.

Criteria and Documents Required for filing Trademark

  • Applicant’s Name, address, and nationality. In the case of a partnership firm, the names of all the partners are required to be mentioned. Disclosure if the partner is a minor
  • In the case, the applicant is a company, details of the incorporation along with the country/state details.
  • Details of goods and/or services for which registration is required.
  • Details of the trademark to be registered in Soft copy.
  • A translation of those words into English is required if the mark contains or consists of non-English words.
  • If the applicant is filing claimed priority from an earlier filed convention application, further details are required along with the basic details

Details of that application are also required

Submission of a certified priority document or its duly notarized copy. Further, if the certificate is not in English, a translation of a certified priority document/notarized copy in English is also required. From the filing date of the application, a copy of the priority document can be submitted within 1 month. If used earlier, the date of the first use of the trademark in India is required to be mentioned.

  • A POA (Power of attorney) is to be simply signed by the applicant (no legalization or notarization is required).In the case of Indian client, POA (Power of attorney) is to be executed in 100 Rs. stamp paper and signed by the applicant. At the time of lodging, the application the power of attorney is not required and can be submitted later with no additional cost.

Removal of the Trademark from the Register

On the ground that the trademark has wrongly remained on the register, the trademark can be removed on application to the Registrar. Further, on Suo motto basis the Registrar can issue a notice for removal of a registered trademark

And here you are done with the process. Hope you find it easy and useful. For more guidance click here.

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