A trademark (popularly known as the brand name) in layman’s language is a visual symbol which may be a word signature, name, device, label, numerals or combination of colors used by one undertaking on goods or services or other articles of commerce to distinguish it from other similar goods or services originating from a different undertaking. The legal requirements to register a trademark under the Act are:
The selected mark should be capable of being represented graphically (that is in the paper form).
It should be capable of distinguishing the goods or services of one undertaking from those of others.
It should be used or proposed to be used mark in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services and some person have the right to use the mark with or without identity of that person.
Any person, claiming to be the proprietor of a trademark used or proposed to be used by him, may apply in writing in prescribed manner for registration. The application should contain the trademark, the goods/services, name and address of applicant and agent (if any) with power of attorney, the period of use of the mark.The application should be in English or Hindi. It should be filed at the appropriate office.
The applications can be submitted personally at the Front Office Counter of the respective office or can be sent by post. These can also be filed online through the e-filing gateway available at the official website.
The Registered Proprietor of a trademark can create establish and protect the goodwill of his products or services, he can stop other traders from unlawfully using his trademark, sue for damages and secure destruction of infringing goods and or labels.
The Government earns revenue as a fee for registration and protection of registration of trademarks
The Legal professionals render services to the entrepreneurs regarding selection registration and protection of trademarks and get remunerations for the same
The Purchaser and ultimately Consumers of goods and services get options to choose the best.
Any name (including personal or surname of the applicant or predecessor in business or the signature of the person), which is not unusual for trade to adopt as a mark.
An invented word or any arbitrary dictionary word or words, not being directly descriptive of the character or quality of the goods/service.
Letters or numerals or any combination thereof.
The right to proprietorship of a trademark may be acquired by either registration under the Act or by use in relation to particular goods or service.
Devices, including fancy devices or symbols
Combination of colors or even a single color in combination with a word or device
Shape of goods or their packaging
Marks constituting a 3- dimensional sign.
Sound marks when represented in conventional notation or described in words by being graphically represented.
If it is a word. It should be easy to speak, spell and remember. The best trademarks are invented words or coined words or unique geometrical designs.
Please avoid selection of a geographical name, common personal name or surname. No one can have monopoly right on it.
Avoid adopting laudatory word or words that describe the quality of goods (such as best, perfect, super etc.)
It is advisable to conduct a market survey to ascertain if same/similar mark is used in market.
Under modern business condition a trademark performs four functions
It identifies the goods / or services and its origin.
It guarantees its unchanged quality.
It advertises the goods/services.
It creates an image for the goods/ services.
But the basic principle is that the trademark applied for should not be substantially altered affecting its identity. Subject to this changes are permissible according to rules detailed in the subordinate legislation.
It can be removed on application to the Registrar on prescribed form on the ground that the mark is wrongly remaining on the register. The Registrar also can suo moto issue Notice for removal of a registered trademark?
The register of trademark currently maintained in electronic form contains inter alia the trademark the class and goods/ services in respect of which it is registered including particulars affecting the scope of registration of rights conferred; the address of the proprietors; particulars of trade or other description of the proprietor; the convention application date (if applicable); where a trademark has been registered with the consent of proprietor of an earlier mark or earlier rights, that fact.
The national statues i.e., the Trade Marks Act, 1999 and rules made there under.
International multilateral convention.
National bilateral treaty.
Decision of the courts.
Office practice reduced in Manuals and guidelines and rulings of the Courts.
Decision of Intellectual Property Appellate Board.
Text books written by academician and professional experts.
1. ‘TM’ Symbol
This symbol is used in case of branding goods. An Applicant can use this symbol with the brand name until the Trademark is not registered and the application is in pending status. This denotes exclusive claim over the brand, however, the validity of the claim depends upon the result of trademark registration application.
2. ‘SM’ Symbol
This symbol is used in case of branding Services. An Applicant can use this symbol with the brand name until the Service mark is not registered and the application is in pending status. This denotes exclusive claim over the brand, however, the validity of the claim depends upon the result of trademark registration application.
3. ‘R’ Symbol
This symbol is only applicable for your brand when the mark is being registered and the Certificate of Registration is issued by the Trademark Registrar.
In case of an enterprise engaged in the manufacture or production of goods, an enterprise where the investment in plant and machinery does not exceed the limit specified for a medium enterprise under clause (a) of sub section (1) of section 7 of the Micro, Small and Medium Enterprises Development Act, 2006 (27 of 2006);
In case of an enterprise engaged in providing or rendering of services, an enterprise where the investment in equipment is more than the limit specified for a medium enterprise under clause (b) of sub section (1) of
section 7 of the Micro, Small and Medium Enterprises Development Act, 2006 (27 of 2006);
Explanation: "enterprise" means an industrial "undertaking" or a business concern or any other establishment, by whatever name called, engaged in the manufacture or production of goods in any manner pertain to any industry specified in the first "schedule" to the Industries (Development and Regulation) Act, 1951 (65 of 1951) or engages in providing or rendering or any services or services in such an industry.
In case of foreign enterprise, an enterprise which fulfill the requirements as mentioned in clauses (1) and (2) above.
Explanation: In calculating the investment in the plant and machinery, reference rates of foreign currency of Reserve Bank of India shall prevail.
What qualifies as a “Startup” for the purpose of Government schemes?
An entity (Private Limited Company or Registered Partnership Firm or Limited Liability Partnership) shall be considered a “Startup” –
How does a Startup obtain benefits under various Government schemes including the ones announced in the Action Plan on January 16, 2016?
For availing various benefits (except tax and IPR related benefits i.e. action points #4, #9, #10 and #11 of the Startup India Action Plan), an entity would be required to be recognized as a Startup by applying on Startup India Mobile App/ Portal.
In order to obtain tax and IPR related benefits, a Startup shall be required to be certified as an eligible business from the Inter-Ministerial Board of Certification.
How long would recognition as a “Startup” be valid?
An entity would cease to be a 'startup' upon expiry of:
Startups would be required to intimate DIPP of any such cases within a period of 21 days.
Can an existing entity register itself as a “Startup” on the Startup India Portal and Mobile App?
Yes, an existing entity that meets the criteria as indicated in response to Question 1 can visit the Startup India Portal and Mobile App and get itself recognized for various benefits. The tax benefits proposed under the Finance Bill 2016 will be available from 01-04-2016.
What is the timeframe for obtaining certificate of recognition as a “Startup” in case an entity already exists?
The process of registration in such cases shall be real time and the certificate of recognition would be issued immediately upon successful submission of the application.
An entity is yet to be registered/ incorporated. Can I visit the Startup India Portal and Mobile App to register/incorporate my entity as either a Private Limited Company or Registered Partnership Firm or Limited Liability Partnership?
There are two options available in such cases.
What documents would qualify as a supporting document to the application to register as a “Startup”?
One of the following documents is required to be uploaded along with the application for registration as a Startup on Startup India portal and mobile app:
The list of incubators recognized for the purpose of (a), (b) and (c) are published on the Startup India portal for reference.
The list SEBI registered funds for the purpose of (d) is also available on the Startup India portal.
Do I need to print an application form and submit the physical copy of the same to complete the process of Startup registration?
No. The application has to be submitted online only.
Once my registration is successful, would I obtain a certificate for it? If Yes, would I be able to download the certificate?
Yes. On successful registration, you would be able to download a system generated verifiable certificate of recognition.
If an incubator rejects an application, can the entity apply again to the same incubator or would it be required to apply at a different incubator?
Yes. In such cases, an entity can apply again to the same incubator that rejected the application, as well as any other incubator.
If during the Registration process, an applicant marks the response to “Do you want to avail Tax and IPR benefits” as “No”, would I be allowed to change the response to “Yes” later?
Yes. In such cases, option to opt for such benefits may be indicated at a later stage as well.
Once a user opts for availing the benefits, his/ her application would be evaluated by the Inter-Ministerial Board. Once certified by the Board, the benefits may be availed.
If an entity does not have a PAN. Would I be allowed to register my entity as a “Startup”?
Yes. An entity without a PAN can be registered as a Startup. However, it is advised that a valid PAN of the entity is provided at the time of registration, as each entity is separately taxable person.
Can I provide two mobile numbers in the registration form?
It is advised that only one mobile number of the authorized representative of the entity is provided at the time of registration. The portal and the mobile app would be sending an OTP on the mobile number provided for the user to complete authentication and registration process.
Is there any specified format for obtaining a recommendation letter?
Yes. The prescribed formats for recommendation/ support/ endorsement letters are published on Startup India portal.
If an entity has filed for a patent that has been published. In this regard, which document would suffice as a supporting document to register the entity as a “Startup”?
In such cases, valid copy of the published patent would suffice as a supporting document.
What will be the constitution of the Inter- Ministerial Board?
The Inter-Ministerial Board of Certification would consist of:
How would the Inter-Ministerial Board review the applications received for the purpose of tax/ IPR benefits?
The Board shall review the supporting document(s) provided to ascertain if the entity qualifies as an eligible business for availing tax/ IPR benefits.
What is the timeframe for obtaining certification of Inter-Ministerial Board for availing tax/ IPR benefits in case an entity already exists?
An application for a certificate from the inter-ministerial board shall be processed within a period of 10-25 working days.
Can entities that do not have any of the other evidences like incubator certificate, funding from registered VCs or patents still apply to Inter -Ministerial Board for tax exemptions?
No. One (1) of the six (6) prescribed supporting material is mandatory to make an application to the Inter- Ministerial Board.