Starting your own business can become exciting in every way. Finding investors for your startup, thinking about growing and improving your firm, working with tax professionals for regular compliances and IPR experts and to register a trademark, and so on. But have you taken the time to note down key elements you might encounter throughout your business journey? If you’re seeking trademark registration for your startup, you’ve come to the right place. We will show you how a business entity acquires intellectual proprietary rights like a trademark during its course of transacting its business , which can influence and become the core strength of your business gradually.
But first, what exactly is a trademark? Trademarks are used to identify a product’s or service’s origin to its owner or creator. The Trade Mark Act, of 1999 and the Trade Mark Rules, of 2017 regulate trademark law in India. Section 2 (M) of the Trademark Act of 1999 provides a fairly broad meaning of a trademark, which is as follows: –
In India, a trademark is categorized into six categories, which we shall explore in the next section. Let’s get started.
In India, trademarks are divided into many categories such as words, device, colors, and shape of goods, sound mark and three dimensions. The business needs to file separate applications for each category of the trademark. The trademark is classified into the following categories:
Color – It consists of a single color or a mix of colors, with or without a unique device mark. The application as a color mark must describe the color combination in detail.
3D Trademark – It comprises the packaging or shape or of items of certain products such as the Xbox 360 logo, whiskey bottles, and so on.
Sound – A melody that differentiates the services or products provided by a company might be trademarked. Sound marks in trade sense are extremely rare. The validity of a sound mark is determined by whether or not the sound is or has become a distinctive mark; that is, whether or not the average user hears the sound as denoting that goods or services are only identified with one business.
Shape of goods- The applicant must state on the application form that the application is for a shape trade mark.
A device mark is a visual representation or design that may or may not include texts. Colors may or may not be used to symbolize the device mark. However, if the owner of a trademark secures trademark registration for a logo or design that includes colors, the same colors must be utilized throughout to acquire trademark protection.
When trademark owners want to register a visually striking appearance or a mix of styled language, color, form, and design, they must select device mark registration in their trademark application. By registering a device mark, third parties are prevented from using a same/similar logo or design for their products or services.
If any person uses the same/ similar device registered by a business for the same kind of products and services it will be considered as infringement of the proprietary right of the trademark owner. The trademark owner may file a case of trademark infringement against these users and could prohibit them from using its mark. Thus , a trademark registration will safeguard your trademark against infringement. Even if you experience trademark infringement, where the infringer has used your brand logo to represent their business, you can sue them for imprisonment for less than six months or three years, as well as a fine of not less than ₹50,000, which may be up to ₹2,000,000.
People find the device mark visually pleasing and eye-catching. People are more likely to recall the design than the words associated with the goods or services. When a design or logo with distinguishing elements is used on a wide range of goods, it helps in brand recognition and the development of a company’s image and reputation.
The device mark is not flexible; which means that the mark must be used exactly as it was filed in the trademark registration application. If minor changes are made to the logo, the existing logo or the design will no longer protect it and it is suggestable to file a separate application to protect the new device. The team setindiabiz could help you to manage and protect your proprietary rights.
Another limitation of registering a device mark as a trademark is that the trademark search for a logo or design mark is more difficult than a word mark search. During registration, the owner must provide information such as a representation of the logo in jpeg format, logo’s description, font used etc.
Before filing a trademark application, owners of the trademark must consider whether to file for a word mark or device mark. They must select whether to register simply the brand name or the brand logo or to register both the brand name and the trademark logo. A word mark gives exclusive rights to the registered trademark owner to use the mark for their goods and services whereas the device mark gives limited protection as to the artistic representation of the logo or device.
Rather than just a logo, a company’s brand name usually includes both words and a logo. To achieve the best protection for their firm, business owners should apply for separate trademark registration for words and logos.