FREQUENTLY ASKED QUESTIONS ABOUT TRADE MARKS
1. What is a Trademark?
A. A trademark is a visual symbol like a word, a device or a label that is applied to goods or used in relation to goods to indicate the source of origin of the goods. A mark could be a device, a brand, a heading, a label, a ticket, a name, a signature, a work, a letter or even a numeral or any combination thereof.
2. What are the uses of a Trademark?
A. The main use of a Trademark is to identify the origin of the goods and to ascertain where they emanate from. A Trademark also provides an indication as to the quality of the product. A particular brand of soap may be different from another brand. A Trademark, therefore, creates a brand image in the eyes of the public and serves to advertise the product.
3. Who can apply for registration of a Trademark?
A. Any person or legal entity can apply for registration of a Trademark. It is not necessary that the applicant should have used the mark prior to filing the application. The mark could be used sometime in the future by the applicant.
4. What is the procedure for registration?
A. An application has to be made in Form TM-1 along with representations of the Trademark applied for. The application should mention the name, address and nationality of the applicant, the class of goods in respect of which the application is being made and the date since when the applicant is using the Trademark. After the application is made, it is scrutinized by the Registrar of Trade Marks and if it confirms with the legal requirements and does not conflict with any existing mark, it is advertised in the Trademarks Journal. If after having advertised the Trademark no objections are received, it proceeds for registration.
5. How is a Trademark different from a Copyright?
A. A Trademark is some mark that is affixed on the goods to indicate the origin of the goods. Whereas, a copyright is a right given to the author of a literary, dramatic, musical, artistic work or even to a cinematographic work or a sound recording. The object of the copyright law is to encoura ge authors and artists to create original works.
6. Is a Trademark required to be renewed?
A. Yes. The registration of a Trademark is for a period of 7 years and must be renewed from time to time to keep it valid and subsisting. If the mark is not renewed, it will be removed from the register.
7. What marks cannot be registered?
A. a mark which is identical to another mark or which would cause confusion or deception
I.a mark which contains scandalous or obscene matter.
II.a mark the use of which is contrary to any law
III.a mark which would hurt the sentiments of any class or section of citizens
IV.a mark which would otherwise be disentitled to protection in court any commonly use/d name of chemical compound
8. What are the rights conferred by registration?
A. Under the common law, an infringement of a Trademark can be protected only by filing a suit against the infringer for passing off his goods as and for those of the proprietor of the mark. He cannot sue for infringement. In a suit for passing off the proprietor has to prove that he is indeed the proprietor of the mark. Whereas, once a mark is registered, it is prima facie proof of proprietorship and the proprietor can sue for infringement of the mark and claim damages. The proprietor of a registered mark is entitled to assign the Trademark without the goodwill of the business, which cannot be done in case of an unregistered mark.
9. What if someone copies my trademark?
If the mark is registered and it is copied by someone, the proprietor has the right to file a suit for infringement and damages against the inringer. If the mark is an unregistered one, the proprietor only has a right to sue for passing off.
10.What are the reliefs that can be granted in suits for infringement and passing off?
A. The court has powers to grant injunctions restraining the offender from infringing the mark. It can also grant damages or an account for profits and order the offender to deliver up the infringing articles for destruction.