Why you should register your brand as a Trade Mark?

“Kruti, I am facing a problem. How can I protect my brand name from being misused? It’s unique to me and defines what I do. I don’t want anyone to copy it.

This was Nikita on the phone.

“Sure Nikita, this is a very common business issue and we have a way out. You can trademark your brand. Registering your brand as a Trade Mark will allow you to protect it from being copied and misused.

In fact there are many more advantages of registering your brand as a Trademark.

1. You will get the exclusive right to use the trade mark with respect to the services provided by you
2. You can prevent unauthorised use of your trade mark
3. In case of infringement of registered trademark, you will not have any burden to prove the originality of your brand.”

“That’s great. How does it happen?”

“Yes. As I said, you need to register your brand with the Trade Marks Registry.

A Trade Mark is a mark which represents your goods and/or services. If I were to tell you the definition of a Trade Mark, it is “a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from choose of others and may include shape of goods, their packaging and combination of colors ..”

It starts with an application to the Registrar of Trade Marks. It goes through some predefined steps over a few months including scrutiny, public advertisement to ask for any objections, etc.

Once your trademark application is approved by the Registry, your brand will be a registered Trade Mark.”

“That’s awesome!”  Let’s start the application process. I do not want to waste any more time.”

“Sure Nikita.”

Although Nikita’s problem is solved, here are some more things you may want to know about trademarks.

What if someone does not register a Trade mark?

There are brands which are famous but are not registered as a Trade Mark. Those are known as unregistered trademarks. Not registering a Trade mark has its own disadvantages. An unregistered trade mark does not get any legal benefits. The benefits of registering a trademark are already mentioned above.

To add to that, if you already have a registered trademark and someone else has registered a domain with the same name but not using the domain actively, there are chances that you can claim the domain name based on your registered trademark.

One more advantage is that, if you are planning to incorporate a company or LLP in India, it is easier to get the name approved for the entity based on the Trademark.

What is infringement of Trade Mark?

Infringement of Trade mark means copying or using of a trade mark which is similar or identical to the registered trademark for similar business of the registered trademark.

It is important to know here that your trademark is registered under a particular class. There are 45 classes for a trademark. Depending on the type of business you are in, class or category is defined for your trademark. E.g. A chemical manufacturing business will be registered under Class 1 whereas the business of printing will be under Class 16.

So, if your brand is registered under a particular class, someone else can have same or similar trademark in different class or type of business. This will not be regarded as infringement of trademark.

What if someone infringes an unregistered trademark? 

There are reliefs given to the owner of unregistered trademark too. If someone copies or uses a similar mark as an unregistered trademark, they can be protected under the common law and can hold the other party liable for passing off of their brand. However, it is difficult for the owner to prove his case and seek protection.

How do I know whether a brand is registered or not?

You must have seen symbols  ® and ™ at the top right side of any brand name. Symbol ® represents that the mark is a registered mark and symbol ™ conveys that the mark is an unregistered mark. One point to note here is that you can use ™ sign with your brand till the time your application is not approved by the Registry. However, you should not use ® symbol unless your trademark is registered as the penalties mentioned under the Trade Marks Act are huge.

Is a trademark registered in perpetuity?

Once the application is approved, a trade mark is registered for a period of 10 years.

Here is the table for difference between a registered trademark and an unregistered trademark.

To summarise, although the registration of trademark is not mandatory, it is always recommended to register the same. A brand name is an asset of any business, like goodwill. And it important to protect your brand.

Click here to read more on how to register your trademark.

---

If you are looking to register your brand, you can write to me at kruti@cskruti.com