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What is Trademark?

trademark or trade mark or trade-mark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or services from those of other entities.

A trademark may be designated by the following symbols:

  •    (for an   unregistered trade mark, that is, a mark used to promote or brand goods)
  •    (for an unregistered   service mark, that is, a mark used to promote or brand services)
  • ®   (for a registered trademark)

What is the difference between Trade Mark & Service Mark ? 
A service mark differs from a trademark in that the mark is used on the advertising of the service rather than on the packaging or delivery of the service, since there is generally no "package" to place the mark on, which is the practice for trademarks.

Why register a trademark? 
A registered trademark gives the exclusive use of that name, providing its owner the capability:

  • To create "Trademark Value" (Goodwill), an active intangible for the company
  • To offer licenses and franchises
  • To be differentiated from competitors
  • To be protected from third parties using an equal or similar name, exercising the legal actions that correspond
  • To protect the Internet domain name
  • To impede others attempting to register similar trademarks
  • To have priority over third parties wanting to register their trademarks, in countries which do not require registration

Whether Registration of Trade Mark is Compulsory ?
No. Registration of a trade mark is not compulsory. But for better protection it is advisable to register a trade mark. 

What a trademark does: 
Trademarks benefit both businesses and individuals. They allow businesses to build an identity and reputation with customers, and thereby grow or expand. Trademarks also allow individuals to be better consumers. In fact, Trademark law is the original consumer protection statute. It ensures that consumers can repeat their positive buying experiences by searching out familiar brand names, and avoid bad buying experiences by steering clear of brands they didn't like. 

How to acquire a right of property in a trade mark? 
A person may acquire a right of property in a trade mark in the following modes: 
a) By use of the mark in relation to particular goods ;or 
b) By registration under the Act; or 
c) By assignment or transmission of the right from another person 

Is it necessary to get professional help for registration ? 
As registration of trade mark is a specialized area , it may be necessary to employ the services of a trade mark Agent or Attorney .However this is not compulsory. 

Whether ‘ user’ is very important in trade mark? 
Yes . A trade mark must be used in relation to the goods for which the registration is sought or obtained .If it is not used but merely renewed from time to time , then it will be possible that a mark may be removed on the ground of ‘ non-user’ on a petition filed by any ‘aggrieved person’

Is it possible to file trade mark application on the ground of ‘proposed to be used ‘ ? 
Yes . But the application should have bonafide intention to use the mark at the time of filing the application and further the applicant can claim rights from the date to filing such application. 

What is the advantage of ‘prior user ‘ of a trade mark ? 
‘Prior user’ of a trade mark is in better position rather than the registered proprietor of a mark. Hence the rule of law is -” priority in adoption and use prevails over priority in registration ” .

What about the Renewal of a Registered Trade Mark? 
A registered trade mark should be renewed for every ten years under the present Act . The period of said ten years will be calculated from the date of filing the application 

May I cover more than one mark in a single application? 
A. No. A separate application must be filed for each mark the applicant wishes to register. Likewise, if the applicant wishes to register the same mark in more than one class, a separate application must be filed for each class and each type Black & White, and Colour.

Do I have to be an Indian citizen to obtain a trademark registration? 
No. However, an applicant's citizenship must be set forth in the record. If an applicant is not a citizen of any country, then a Statement to that effect is sufficient. If an applicant has dual citizenship, then the applicant must choose which citizenship will be printed in the Official Gazette and on the certificate of registration. 

Is a trademark registration valid outside India as well? 
No. Certain countries, however, do recognize a trademark registration in India as a basis for registering the mark in those countries. The laws of each country regarding registration must be consulted. 

Can the ownership of a trademark be assigned or transferred from one person to another? 
Yes. A registered mark, or a mark for which an application to register has been filed is assignable 

What is the Organisational structure for administration of trademark in India ? 
The Trade Marks Registry is a subordinate office under the Department of Industrial Development, Ministry of Industry, Govt. of India. It is headed by the Controller General of Patents, Designs and Trade Marks. The Head Office of the Trade Marks Registry is located at Mumbai with branches at New Delhi , Chennai, Calcutta and Ahmedabad. The Head Office of the Trade Marks Registry, Mumbai is headed by the Joint Registrar of Trade Marks. The branch offices are headed by the Deputy/Assistant Registrar of Trade Marks.

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