Trademark Attorney Search Report

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Trademark Attorney Search Report

Trademark Attorney Search Report

A trademark is registered under the provisions of the Trademark Act, 1999 and the Rules framed there under and in conformity with the trade practices issued by the Registrar of Trademark. The Registrar has been entrusted with the responsibility of registering the trademark in specific class for which description has been filed and to ensure that the application is free from discrepancies and the trademark is registrable. Following are the some of key aspects which the registrar must keep in mind which accepting a TM application on for achievement or advertising an TM Application without acceptance.

1 That the trademark is capable of graphical representation and which is distinguishable from the goods or services of one person from those of others.
2 The applied trademark must not be same or similar to an already register trademark or a mark for which a registration application is pending before the Registrar. The expression similar means any visual or phonetic similarity. The Registrar shall also have regard to the nature of goods, purpose of the goods and channel of trade for the goods while deciding similarity between trademark applied under classes marked for goods (Class-1 to 34). However, the Registrar shall consider the nature of services, purpose of services, uses of services and normal business relationship, while deciding the similarity between trademarks applied under classes marked for services (Class-35 to 45).
3 Whether the applied trademark falls under absolute ground of the refusal, which are reasons like the brand is devoid of any distinctive character or in other words it is not capable of being distinguished from the goods or services of another person, which is a absolute ground of refusal under section 9.
4 Whether the applied mark indicates its kind, quality, quantity, intended purpose, values, geographical origin or the time of production of the goods or the time of provisioning of the services or any other characteristic of goods or services.
5 Whether the mark applied indicates any mark which has become customary in the current language or general practice of trade. Further, whether the applied mark is of such a nature, which can deceive the public at large or cause confusion.
6 Whether the applied mark is likely to hurt religious sentiments of any class or section of the citizens of India or it is a mark which is scandalous or obscene matter. Further, the mark should not be something which is prohibited under Emblems and Names (Prevention of Improper Use) Act, 1950 or the applied trademark is with respect to the shape of goods which results from the nature of good itself or which gives substantial value.

Trademark Attorney Search Report

Trademark Attorney Search Report

Before applying for a trademark registration or making investment into manufacturing, trading or advertising, it is strongly advised to seek a formal opinion from an experienced Trademark Attorney. who shall examine the trademark and shall conduct a thorough search in the database of trademark regarding the availability of the proposed mark and its possibilities of getting registered. For a TM attorney search report shall reflect on the classes in which application for the proposed mark should be filed for comprehensive protection depending native the goods/services and the way of operation of an business during such dealings. He will further draft a suitable description for the class trademark in which is to be filed. The Attorney such report is a comprehensive report which enables the decision maker to foresee the possibility of registration of the Trademark from the perspective of Absolute grounds of refusal as specified under Section 9 and the relative grounds of refusal as prescribed under Section 11 of the Trademark Act. It shall further highlight the possibility of a third party objection or further litigation.

The two basic conditions for registration of Trademark are:
(i) That the trademark is capable of graphical representation;

(ii) That the trademark is capable of distinguishing the goods of services of one person from those of others. However, fulfilling these basic conditions does not always guarantee registration of a trademark as the Trademark Act prescribed two further hurdles to be cleared before a Trademark can be registered, these are as under:

(i)
Absolute grounds of refusal (Sec. 9): It deals with the objections that are primarily related with the mark itself and which are not registerable due to their inherent problems. This ground of refusal is primarily aimed at protecting the interests of general public instead of any specific third party.

(ii)
Relative grounds of refusal (Sec. 11): It is with difficulties which a trademark faces while its registration on the ground of same or similar trademark having been already register or an application for registration is filed by some third party. The purpose of this ground of refusal is to protect, rights of party holding a similar or identical trademark and also to safeguard general public from confusion or deception.

 

Once an application passes through all four stated tests the same gets register and a registration certificate is issued with a validity of 10 years reckoned from the date of application.

Trademark Attorney Search Report

 

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