Common Problems with Trademark Registration

Trademark Registration India is serving the common issues that hold the safety of your brand image among your target audience. But it is necessary that you need to cope with the best efforts. 

Trademark Mistakes: it’s aforesaid that holding intellectual property is a key component of economic development. A country that’s ready to secure possession over products and processes for its businesses guarantees not simply domestic financial gain, but conjointly international recognition and increased sales. This makes ownership over product promotion and identification, unremarkably referred to as trademarks, extraordinarily necessary.

What is conjointly equally vital knows its necessity to avoid outrageous legal battles over securing this type of intellectual property. In this article, we highlight certain aspects of trademarks that companies should understand and apply in their trademark building and follow the complete trademark registration India process.

The two basic conditions for registration of a Trademark are:

1. That the Trademark is capable of graphical representation; and

2. That the trademark is capable of distinguishing the products or services of one person from that of others. However, fulfilling these basic conditions doesn’t perpetually guarantee Trademark Registration India because the Trademark Act prescribed two additional hurdles to be cleared before a Trademark may be registered, these are as under:

(i) Absolute grounds of refusal:

It deals with the objections that are primarily associated with the mark itself and that aren’t registerable because of their inherent issues. This ground of refusal is primarily geared toward protecting the interests of the general public rather than any specific third party.

(ii) Relative grounds of refusal:

It is with difficulties that a trademark faces whether its registration on the bottom of the same or similar trademark has been already registered or an application for Trademark Registration India is filed by some third party. These grounds of refusal aim to safeguard the rights of a party holding an analogous or identical trademark and to safeguard the general public from confusion or deception.

Trademark registration services and who can apply?

Any individual or organization can apply for trademark registration India online or offline, to shield their product or service. The applicant needs to be filed mentioning the trademark, name, and address of the applicant along with the agent and POA

 1. Joint owners:

The Joint owners of a corporation alone may file for a trademark and both their names need to be mentioned within the application.

2. Proprietary firm:

One of the easiest business forms concerning value, level of maintenance, and established, a sole proprietary firm isn’t a separate legal entity, and therefore the one who runs the business is exclusively liable for its debts. Hence, a proprietorship company can apply to Trademark Registration India under the name of its proprietor but not under the business name and proprietorship name. If a proprietorship name and business name are included in the application, then those details are enclosed separately.  

3. Partnership firm:

Governed by the Indian Partnership Act, a partnership firm is incorporated when two or more individuals run a business as partners to gain profits that are equally shared or as mentioned in their agreements. Whereas Trademark Registration India, a partnership company needs to mention all the names of the partners within the application, with the maximum number being ten. If there’s a minor partner, then the name of the minor’s guardian needs to be mentioned.

4. Limited liability Partnership or LLP:

As LLP corporations are incorporated on their own identities, these kinds of corporations may file for Trademark Registration India under the respective LLP’s name. However, the partners themselves can’t be candidates.

5. Indian company:

For any Indian company whether limited or private limited or another sort i.e. Trademark Registration Company, the trademark application needs to be created within the company’s name. It’s to be noted that any incorporated entity has its own identity due to which a director of a corporation can’t be a trademark candidate.

6. Society or trust:

Organizations that are created with the aim of social work instead of profits fall into the Trust of Society. It’s known as a Trust if it’s established based on a legal agreement in which a beneficiary holds the property and nominates trustees to regulate the assets and operations. It should be registered as a Society if there are a lot of persons coming together to fulfill a specific purpose.

Both Trust and Society can do Trademark Registration India; provided it’s done on behalf of the Trust or Society and the names of the Chairman, Managing Trustee, and Secretary are mentioned in the application.

7. An individual or a person:

Any individual who needs to register their distinctive words or symbols is eligible to file for Trademark Registration India below their names. However, it’s not necessary that they have to do business.

Only the entities that have their trademarks registered can create, establish and shield their goods, services, and products thereby stopping other unlawful use of their mark.

Factors to Avoid Problems while Applying for Trademark Registration India: 

1. The applied trademark should not be the same or almost like an associate with an already registered trademark in India or a mark that a registration application is pending before the Registrar. The expression similar means any visual or phonetic similarity. The Registrar shall even have relevance to the character of products, the aim of the product, and the channel of trade for the products while deciding the similarity between trademarks applied underclass marked for goods (Class-1 to 34). However, the Registrar shall think about the character of services, the purpose of services, uses of services, and traditional accounts, whereas deciding the similarity between trademarks applied underclass marked for services (Class-35 to 45).

2. whether or not the applied trademark falls under the ground of the refusal, that is the reason the brand is devoid of any distinctive character or in different words, it’s ineffective in being distinguished from the products or services of another person.

3. Whether the applied mark indicates its kind, quality, quantity, supposed purpose, values, geographical origin or the time of production of the products or the time of provisioning of the services, or the other characteristic of products or services.

4. Whether the mark applied indicates any mark that has become customary within the current language or general application of trade. Further, whether or not the applied mark is of such a nature, may deceive the general public at massive or confuse.

5. Whether or not the applied mark is probably going to harm nonsecular sentiments of any category or section of the voters of the Republic of India or it’s a mark that is disgraceful or obscene matter. Further, the mark shouldn’t be one thing that is prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950, or the applied for Trademark Registration India is concerning the form of products which ends from the character of excellent itself or which provides substantial price.

7. Internet problems in India deal with the misuse of a trademark as the domain name. Cybersquatting could be a major drawback in this field. Besides this, the sale of counterfeiting fakes and replicas of well-known brands by web auction and search sites have created a twin problem.

8. The absence of any “Cost of Damages” provisions within the Statute has led to lesser restraints over the infringers. This involves the primary challenge herewith mentioned as infringement is the base for the existence of Law for Trademark Registration India.

9. There exists doubt about the Territorial Jurisdiction of the legal forum in cases of composite cases. Composite cases are those wherever the trademark owner files each passing off and infringement action along for his registered trademark. Concerning this additionally, exists a dilemma in the construction of the term ‘carrying on businesses. For instance – a trademark owner files a composite case, it contains a ton of branches in the whole of India. Where can he file his case as there’s no demand of ‘the principal place of businesses for passing off remedy?

10. It is tough to prove Passing Off as actual deception is to be evidenced rather than a mere chance of trademark infringement. Conjointly the procedural edges of Trademark Registration India are as follows:

• A criminal action initiated by a registration certificate by the Trademark owner makes it simple for the police.

• The courts with regards to infringement action on a stronger footing than an action for mere passing off.

• Trademark Registration India provides the Trademark owner a jurisdictional choice to sue within the town in which he carries his business irrespective of the fact wherever the infringer’s place of business.

11. The courts have to stumble upon such cases many times, mainly the courts in metropolitan cities. Therefore, the courts ground on 2 issues:

• The pretend addresses provided by the Defendants (i.e. the domain name infringer) and thenceforth on service of notices, he never turns up.

• The website’s operation will be stopped however no punitive action will be taken against the infringer, as he won’t answer the service of notices.

12. Protecting the products or services, we can see that Trademark Registration India is the weakest property right amongst patents, and copyright protection. Trademark doesn’t defend the products always; it protects the simply promoting ideas. Therefore, a trademark should go along with other property rights being the weakest protection.

13. Trademark registration is valid for ten years and trademark registration in India can be renewed after ten years of expiration. The foremost disadvantage of trademark registration is that you have to pay fees every ten years. Non-payment of renewal trademark registration India fees could cause the removal of the trademark from the register.

14. In some cases, the trademark examiner would possibly see certain issues or problems with Trademark Registration in India. These problems are either the filing of an incorrect trademark form, incorrect name/details, the usage of deceptive or offensive terms, lean data on goods or services, or the existence of a consistent or misleadingly similar mark.

15. Infringement of trademark is a violation of the exclusive rights granted to the registered owner of the trademark to use the same. A trademark is alleged to be infringed by an individual, who, not being a permissible user, uses an associate identical/ similar/ misleadingly similar mark to the registered trademark while not the authorization of the registered owner of the trademark. However, it’s pertinent to notice that the Indian trademark law protects the unconditional rights of a previous user against a registered owner that is based on common law principles.

16. At times entities trying to register their trademark fail to register their prospective mark as per the Trademark Registration India process in the correct categories of products or services. This selection becomes a problem as a result the corporate can lose out on protection in the relevant category whereby they’re functioning. The foremost normally followed distinction between products and services could be a good classification. The repercussions may be that after the entity has registered the mark in the wrong category, then this omission on their part cannot be corrected. They will have to file for a new application. 

17. An individual or an organization would possibly try to traffic their prospective trademark. During this case, what they typically do is that they register the trademark in various categories as per the product and service Classifications. When they do not have any intention of using a similar therein specific category, this can be done only to prevent others from using that specific trademark. This ends up in the trademark being exclusive to that particular individual or that company in classes where they do not intend to do business. The United States Court law has followed tight principles once it involves corporations attempting to do such acts.

18. Section 11 of the Trademark Act lays down relative grounds for refusal of trademark registration in India. Except in the case of Honest use, a mark is registrable if: there’s a chance of confusion on the part of the general public as a result of the mark being a clone of the sooner trademark.

19. We cannot opt for Trademark Registration India if it deceives the general public or causes confusion. Section 9(2) primarily considers the deceptive nature of the mark. A mark could also be deceptive if there’s one thing inherent within the mark itself or its use, like the standard, nature, or geographical origin of the product or services.

20. We cannot register a mark if it consists exclusively of:

– The shape of products because of the character of the products themselves. For example, spherical or lever-type door handles can fall within the scope of section 9(3) (a). Hence, they are registrable.

– The shape of products is essential to get a technical result.

– The shape that adds substantial worth to the goods- the shape should have a visible attractiveness for additional worth. Besides, it mustn’t be sensible to fall within the meaning of this provision.

Types of Trademark Infringement

When looking into trademark infringement, one should recognize that there are two sorts of infringement:

1. Direct Infringement:

Direct infringement is defined by Section 29 of the Act. Several components got to be met for a direct breach to occur; they’re as follows:

Use by an unauthorized person: this suggests that violation of a trademark solely happens once the mark is employed by someone who isn’t authorized by the holder of the registered trademark. If the mark is employed with the authorization of the holder of the registered trademark, it doesn’t represent infringement.

Identical or deceptively similar: The trademark utilized by the unauthorized person has to either be identical to that of the registered trademark or deceptively kind of like it. The term ‘deceptively similar’ here solely means the common shopper ‘may’ be confused between the marks and will think about them being identical. The operational word here is ‘may’, it solely has to be tried that this is a possibility and doesn’t need proof of actually happening. As long as there’s an opportunity for misrecognition of the marks, it’s enough for proving infringement.

Registered trademark: The Act solely extends protection to emblems that are Trademark Registration India. In the case of breach of an unregistered mark, the common law of passing off is employed to settle disputes. It’s a tort law that’s used wherever injury or damage is caused to the goodwill related to the activities of another person or group of persons.

Class Of Goods Or Services: For the infringement of the trademark, the unauthorized use of the mark has got to be used for the propagation of products or services that represent an identical category of the registered trademark.

2. Indirect Infringement:

Unlike direct infringement, there’s no provision in the Act that deals with indirect infringement specifically. This doesn’t mean that there’s no liability for indirect infringement. The principle and application of indirect infringement arise from the universal law principle. It holds responsibility not solely the principal infringer but additionally, anyone that abets, or induces that direct wrongdoer to infringe. There are 2 types of indirect infringement:

Vicarious liability: per Section 114 of the Act, if a corporation commits an offense under this Act, then the entire company is liable. Thus not solely the principal infringer however, one and all to blame for the corporate are answerable for indirect infringement, except for a person who acted in good faith and without knowledge of the infringement. 

Contributory infringement: There are 3 basic components to conducive infringement

– Once the person is aware of the infringement 

– Once the person materially contributes to the direct infringement 

– Once the person induces the principal infringer to infringe within the case of conducive infringement, there’s no exception as there exists no chance of the contributory infringer to act in good faith.

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