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Filing for trademark in India

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Filing for trademark in India

Filing for trademark in India

In today’s materialistic world where intangible standards of quality such as the goodwill and the brand value of a certain product matter than the tangible quality of the product itself, when the common folk, the youth, dances to the tunes of wakhra swag shunning the idea of running after the brand tags but savagely contradicting […]

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trademarks-on-the-street.png

In today’s materialistic world where intangible standards of quality such as the goodwill and the brand value of a certain product matter than the tangible quality of the product itself, when the common folk, the youth, dances to the tunes of wakhra swag shunning the idea of running after the brand tags but savagely contradicting themselves by bragging about their Gant ki chaddi, Armani de noore, preserving one’s business identity becomes a task of top notch priority. It’s more important to preserve your goodwill then persevere to preserve your quality of products.

Let’s take a look at how the process is in a legal context. There are 5 trademark offices in India viz Ahemadabad, Chennai, Kolkata, Mumbai, New Delhi head quartered at Mumbai. The filing of a trademark is a Kafkaesque process entailing the initiation of process by filling an online form marshalling the relevant documents and choosing the appropriate class (see NICE Classification) your product falls in, a job better left for attorneys like us. A business house dealing in several commodities falling in different classes should choose to file the application separately under each relevant class. A major benefit accruing under this method is that rejection of one application won’t hamper the trajectory of other applications though an application for association of all the applications could be filed during the process to avoid any confusion. The only tangible benefit out of filing one single application for all the classes is that you save tiny winy amount on the attorney fee though that is not at all the reason we advise you against one application and opt for multiple applications instead.

After a successful filing the registry either approves the mark and publishes it in the trademark journal where a 4 month period is given to the concerned individuals to oppose the mark if it falls in conflict with their registered mark or objects to the mark on the grounds of any relative or absolute restriction under the trademark Act. The Registry while objecting the mark and the opposing party as the case may be should file a notice circumscribing the reasons for such opposition and a 2 months period is given to the applicant to file their reply to such notice defending their mark. After hearing all the arguments and counter argument the Registry reaches a decision which shall be binding on the parties subject to appeal to the appellate board.

This process can take years at times, to avoid hefty payments in form of attorney fee and litigation costs, below are certain pointers for choosing the business mark.

  1. The mark should not be descriptive of the product class, one cannot file a trademark for the name say whiskey, car, bike etc.
  2. More the arbitrariness, faster the approval. An arbitrary mark, something which you come up with, with no relation to the product itself has higher chances of getting through.
  3. No can monopolies adjectives. If you think you can file a trademark for the term imperial you are being too hard on yourself.
  4. Then how is Imperial blue a trademark??? A mark when compared to other for relative restrictions or when analysed for absolute restriction is taken as a whole. Imperial blue per se does not denote the character of the product so no absolute restriction and when compared as w hole, in its entirety to other mark say Rhizome’s Imperial gold is completely different, so no relative restriction either.
  5. The grounds for testing similarity are Conceptual similarity, Visual similarity and Phonetic similarity.
  6. As common sense dictates marks in contravention of public policy and order are subject to be refused under absolute restrictions and would be objected to by the registry.
  7. An application for a mark already registered but under a different class would be permitted unless the pre-registered mark has a huge reputation and goodwill in market. For instance, no can register trademark for underwear production in the name of Mercedes, it’s supposed to have universal reputation and such an act would be considered passing off if not infringement.
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