What is a trademark? Who can file for a trademark?



What is a trademark?

In simple words: "A trademark is any sign that individualizes the goods of a given enterprise and distinguishes them from the goods of its competitors."

A trademark is a sign capable of distinguishing the goods or services of one enterprise/ company/ industry/ cooperate from those of other enterprises.

Trademark protection can be obtained through registration, by filing an application for registration with the national/regional trademark office and paying the required fees.

What is the function of a trademark?

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.
• It ensures that consumers can distinguish between products;
• It enables companies to differentiate their products;
• It is a marketing tool and the basis for building a brand image and reputation;
• It is licensed and provide a direct source of revenue through royalties;
• It is a crucial component of franchising agreements;
• It is a valuable business asset;
• It encourages companies to invest in maintaining or improving product quality;
• It may be useful for obtaining financing. 

Criteria of a registrable trademark:

The registration of a trademark, there has:         
• first to be a sign and
• second it (sign) must be distinctive. 

A sign can be:

(i) Words
This category includes company names, surnames, forenames, geographical names and any other words or sets of words, whether invented or not, and slogans.

(ii) Letters and numerals
Examples are one or more letters, one or more numerals or any combination thereof.

(iii) Devices
This category includes fancy devices, drawings and symbols and also two-dimensional representations of goods or containers.

(iv) Combinations of any of those listed under (i), (ii) and (iii), including logotypes and labels.

(v) Colored marks
This category includes words, devices and any combinations thereof in color, as well as color combinations and color as such.

(vi) Three-dimensional signs
A typical category of three-dimensional signs is the shape of the goods or their packaging. However, other three-dimensional signs such as the three-pointed Mercedes star can serve as a trademark.

(vii) Audible signs (sound marks)
Two typical categories of sound marks can be distinguished, namely those that can be transcribed in musical notes or other symbols and others (e.g. the cry of an animal).

(viii) Olfactory marks (smell marks)
Imagine that a company sells its goods (e.g. wntmg paper) with a certain fragrance and the consumer becomes accustomed to recognizing the goods by their smell.

(ix) Other (invisible) signs
Examples of these are signs recognized by touch. 

Need of Trademark

In order to fulfill their distinguishing function for consumers who wish to make their choice between different goods of the same kind on the market, trademarks must be legally protected. Otherwise, competitors could use identical signs for the same or similar goods or signs so similar that the consumer would be confused as to the origin of the goods.

Trademark search:
Trademark search is being done using simple search or advance search. Following are the search engines for a trademark search.
1) Indian Trademark Registry database
2) Global Brand Database – WIPO
3) TMview

Trademark Registration:
For filing new applications there are prescribed forms depending on the nature of application
such as:
• Form TM-1, TM-2, TM-3, TM-8, TM-51 etc.
• Form TM-12 for Renewal of a Regd. Trademark
• Form TM-13 for restoration of removed mark

Trademark Opposition:
To file a Notice of Opposition to oppose an application published in the Trademarks Journal (FormTM-5). 

FAQs about Trademarks

The term of protection may vary, in many countries registered trademarks are protected for 10 years. Registration may be renewed indefinitely provided renewal fees are paid periodically.

The more distinctive the trademark, the greater the protection. A trademark can be inherently distinctive, or it can acquire distinctiveness.
There are ways to increase the distinctiveness of your trademark:
• Use a special script rather than standard letters.
• Identify and use specific colors.
• Add a logo or graphical elements to the letters. 

Yes, it can be removed on application to the Registrar on prescribed form on the ground that the mark is wrongly remaining on the register.

Trademarks distinguish the goods of one enterprise from those of others, while service marks fulfill the same function in relation to services. Services may be of any kind, such as financial, banking, travel, advertising, and catering, to name a few. Legally there is no difference between the two terms.

Well-known marks are trademarks and considered to be well-known by the competent authority of the country where protection for the trademark is sought. Any type of trademark can become “well known” over time.

Trademark law gives legal protection to trademarks that are distinctive. The distinctiveness of the trademark refers to how easily customers identify a trademark with the associated products. Distinctive trademarks are sometimes referred to as “strong” trademarks.

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