Trademark Registration Process commences with filing of Form TM-1 with the office of Registrar of Trademarks. Trademark Registration is an lenghty and tedious process requires preservence as 98% of the Trademark Application are subject to Objection by the Registrar of Trademarks.
Requirement for filing trademark application in India.
1.Name of the Applicant
2.Nationality / Place of incorporation of the Applicant.
3.Address of the Applicant
4.Goods / service provided
5.Representation of the mark in word or label.
6.Date on which the mark was first used/Proposed to be used.
Rights conferred by trademark registration.
Proprietor of a registered trademark has the rights to make exclusive use of the trade mark in relation to the goods or services in which the registration is procured. The registration shall also entitle the registered proprietor of the brand to obtain relief in respect of infringement of trade mark in the manner provided by this Act.
Significance of the word TM, SM and R
A new trademark application pending for registration is denoted by the word TM. New trademark into the service industry is denoted as SM (service Mark). When a SM or TM is registered it is denoted as ®.
Trademark Registration Procedure: India
Trademark Search: It is advisable to conduct a trademark search for the relevant classes before filing the application to register a trademark in order to make sure that there is no identical or similar trademark already registered or for which an application for registration has been submitted.
The trademark application for single class application is filed vice Form TM 1, as of now (May 2011), the same is accepted at the trademark office counter in hard copy. It can also be filed on-line through the aforesaid trademark registry, Indian website.
Publication in the Trademark Gazette: After preliminary examination, if the Trademark Registrar considers the mark to be distinctive, it orders the publication of the mark in the Trademark Gazette. Thereafter if no opposition is received within the prescribed time limit, the mark is deemed to be registered. Status of the mark can see on the aforesaid Indian trademark registry web site
Time period for registration of trademark.
As of now the total time period to register a trademark is approximately 24 months, if no objection from TM Registry/opposition from third party is received.
No person shall be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered trade mark.
Nothing in this Act shall be deemed to affect rights of action against any person for passing of goods or services as the goods of another person or as services provided by another person, or the remedies in respect thereof. (Passing Off Action)
Who may apply for trademark registration?
Any person “claiming to be the proprietor” of the trade mark ‘used’ or ‘proposed to be used’ by him may make an application in the prescribed manner for registration of his trade mark. Any person is wide enough to include any individual, company, or association of persons or body of individuals, society, HUF, partnership firm, whether registered or not, Government, trust etc. [Section 3(42) General Clauses Act1897]
Company: A company may make an application for registration of a trade mark in its own corporate name. In the case of a company incorporated outside India, the country of incorporation and the nature of registration, if any, are to be mentioned.
Firm: A partnership firm shall make the application in the names of all partners trading as XYZ. When including the Name of a minor in the partnership, the name of guardian representing the minors should also be mentioned. If there is omission of the name of any partner in TM-1 or corresponding new application form, the omission can be corrected when supported by necessary documents. Such corrections will not constitute change in the proprietorship of the mark. However, any new addition or deletion of name of a partner subsequent to the date of application will mean change in the partnership.
Trust: Application may be made in the name of a trust, represented by its managing trustee/chairman etc trading as XYZ.
Government: The Central or State Government or any undertaking/company owned or controlled by such Government may also make application for registration of trade mark like any other person. Joint Applicants: Section 24 enables registration of two or more persons to be registered as joint proprietors of the trade mark, where the mark is used or proposed to be used in relation to goods or services connected with the joint applicants.
Trademark Flowchart can be found on below link