Trademark Registration In India And Its Protection Article

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Trademark Registration in India and its protection

The Trade mark registration in India is governed by the Trade Marks Act 1999 and the Trade Mark Rules 2002.

Author: Biswajit Sarkar

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A trade mark may be defined as any word, letter, numeral, sound, label, ticket etc, capable of being represented graphically and which is applied to articles of commerce to indicate to the purchasing public that the goods or services pertains to a particular business house as distinct from others.

It is always advisable to conduct a search of the existing trade marks in order to determine whether there are any similar/ deceptively similar trade marks on record. Trade mark search in India is free.

If the search is clear then a trade mark application may be filed at the Trade Marks Office. The application number is then allotted by the Trade Mark Registry. For all purposes the application number is also the trade mark number. Once the application number is received, the applicant may denote the symbol tm on the right hand top corner of the trade mark.

For the purpose of registering the trade mark goods and services are classified. Presently India is following the Nice Classification. The goods are covered from classes 1 to 34 and the services are categorized under classes 35 to 45.For trade mark registration in India, applications may be filed for a single class or for multi class.
After the application number is received, the application is examined by the Trade Marks Office.

The examiner may raise any objections that he may deem necessary. The applicant must file a suitable reply to meet the objections of the examiner. If necessary an affidavit of use may also be required to be filed evidencing that the trade mark has been used in India.

If the Trade Marks office is satisfied that all the objections are duly met by the applicant, then the trade mark is accepted for advertisement in the trade marks journal. Once the trade mark is advertised, aggrieved parties may initiate opposition proceedings contesting the registration of the trade mark. If no opposition is filed within the prescribed period, the application proceeds towards registration. Once a trade mark is registered the applicant may denote his trade mark with the letter.

If any aggrieved third party wishes to initiate any opposition proceedings, a Notice of Opposition is first to be filed detailing the brief case of the opponent. The Applicant must then reply to the Notice of Opposition by filing a suitable Counter Statement within two months of receipt of the Notice of Opposition. Thereafter the opponent files an Affidavit; Evidence in Support of Opposition wherein he deals with the counter statement and submits his evidence.

Then the applicant files an Affidavit; Evidence in support of Application, wherein he submits his evidence and deals with the Affidavit; Evidence in Support of Opposition. Finally, the opponent files an Affidavit; Evidence in Reply and the matter is heard and decided and the mark is accordingly granted trade mark registration in India or abandoned.

The Indian Trade Marks Act 1999, protects trade marks in India. Any person falsely representing a mark to be a registered trade mark shall be punishable with imprisonment for a term which may extend to three years or with fine, or both. The penalty for falsification of entries in the register is imprisonment for two years or with fine or both. Falsifying a trade mark or falsely applying to goods or services any trade mark bears a statutory penalty of imprisonment for a period of six months to one year and with fine. The Jurisdiction for instituting a suit for infringement lies with the District Court.

About Author

Biswajit Sarkar was founded in 1991 at a time when Intellectual Property was in the process of being repackaged and evolving to meet the challenging situation thrown up by the formation of the WTO. Before the advent of WTO, the field of patents and trademarks was largely restricted to the registration process and defence of infringements. The emergence of the WTO has thrown up immense and tremendous potential and possibilities for protection of branded trademarks worldwide under the generic name of Intellectual Property. Intellectual Property is a diverse field with undefined boundaries. There are many areas of specialization such as trademarks, patents, copyrights, industrial designs, service marks, geographical indication, licensing agreements, franchisee agreements, collaborations, joint ventures, insurance, etc Biswajit Sarkar has endeavoured to keep pace with the rapidly changing scenario in Intellectual Property. We have an international presence in many countries.

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Trademark Registration in India and its protection