In business, a mark is used to denote the origin of a brand. A trademark protects the buyer by preventing public misunderstandings as to the origin or quality of a product. It is used to create an identity that looks different from others which in turn helps the consumers identify the origin of such goods or services.
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Any symbol, word, design or logo can be used as a trademark. .An entity needs to apply for a trademark protection as per its activity. The trademark act classifies in NICE Classification the activity and product in different classes for the purpose of registration of trademark. A business may be required to make more than one application if its activity/product falls in different classes to enjoy trademark protection.
What is a Trademark?
The Indian Trademarks Act, of 1999 under Section 2(zb) defines a trademark as a kind of intellectual property that marks and differentiates products or services from others via the use of a recognized symbol, design, or expression. A trademark can be owned by any individual, corporation, or legal body. Anyone who plans to use or proposes to utilize a brand name commercially must file a trademark and pursue it for its registration to stop others from using the same or similar brands name for their product or services.
Types of Trademarks - Everything You Need to Know
Trademarks are often used to identify the source, owner, or developer of a product or service. There are several logos, phrases, bands, and product brands to select from. A trademark also bans the use of any mark that may be mistaken for an original one. Soft drink firms, for example, are not permitted to use Coca-Cola-like logos or names.
Categories of a Trademark
A trademark application can be divided into several categories and a separate application is required to be filed for each category. The different categories of trademark application are as under:
- Word Marks It includes one or more words, letters, numerals or anything written in standard character like brand name , slogan , tagline.. In simple words where one wants to register only the letters, words or combination of words or numerals without any artistic and pictorial representation can register the trade under word mark category.
Flexibility is the biggest benefit that the word mark provides as after the registration of the mark; it can be used in any design, style and font.Some good examples of word marks are Microsoft, Tata, KFC, IBM
- Device marks It includes any label, sticker, monogram, logo or any geometrical figure with or without wordelement in it. Device marks may also include colors but if the registration is made along with colors then the same combination of colors have to be used to claim trademark protection.
Device mark is eye-catching and attractive which makes it easy for the public to remember.When unique devices are used it helps in recognition of the business because people may not remember the name but they can easily remember the logo. Apple logo is a good example of device mark
- Sound Mark: Sound marks are features acquired by hearing and characterized by their unique sound. It is a trademark where sound is used to perform the trademark function of uniquely distinguishing the commercial source of products or goods and services. According to the new provision the sound submitted should be in MP3 format and it should not exceed 30 seconds of length and visual representation of the sound notations.YAHOO was the first company to register a sound trademark across the globe. In India ICICI bank was the first to register sound as a trademark.Some of the registered sound marks in India are:
- Yahoo -(Human voice yodelling Yahoo)
- National Stock Exchange – (Theme song)
- ICICI Bank – (Corporate jingle – Dhin Chik Dhin Chik)
- Britannia Industries (Four note bell sound)
- Cisco – (Tune heard on logging in to the conferencing service Web Ex)
- Edgar Rice Burroughs – (Tarzan Yell by its toy action figure)
- Nokia – (Guitar notes on switching on the device)
- Three dimensional trademark: It includes both shapes of goods or packaging. It is a non-conventional trademark and to get its registered the shape of goods or its packaging must be distinctively different from the competitors in the market and is enough for the public to recognise the origin of the goods , without the aid of other word marks on it.In simple words it must be able to perform the function of the trademark.
- Color Trademark:Trademark act permits registration of combination of colors to represent the goods and services.When the distinctiveness is claimed in the combination of colors with or without device it is called color mark. In trademark law the color could be considered to acquire distinctiveness when the purchasing public recognises the product or brand by particular combination of color only. In this case the brand is the color. According to section 10 of the Trademark Act,1999 , Colour trademark can be of a single color or combination of colors, but Section 2(1)(m) of the Trademarks Act, 1999 requires a mark to be a ‘combination of colours’ shows the intention of the legislature to not allow single-colour trademarks. Thus it is suggestible to file for a combination of colours as a trademark but where a trade mark is registered without limitation of color, it shall be deemed to be registered for all colors.
- Smell Marks: When the smell is distinctive and cannot be mistaken for another product, a smell mark can be recognized. Consider perfumes.
- Shape of goods: Trademarks can be registered in shape or goods if they have a distinctive shape. But it cannot be registered if the -Shape of goods which results from the nature of goods themselves; Shape of goods which is necessary to obtain a technical result; Shape of goods, which gives substantial value to the goods. Shape of goods are also non conventional trademarks.
In nutshell , Consumer recognition and acquired distinctiveness becomes an important factor in granting a non-conventional trademark like Shape of goods, 3-dimensional trademark, sound mark, smell mark.In granting registration of the non conventional trademark the Registry needs to evaluate the balance of convenience of the Applicant of the mark with the other traders who may be using elements of such trademarks in good faith.
Selection of Brands and its overview
Not all brands are alike. Some brand names have greater impact than others. Your brand’s place on the so-called ‘spectrum of distinctiveness’ defines this. Trademarks ranging from generic and descriptive to suggestive, arbitrary, and fanciful.
This article will help understand better the notions of uniqueness so that any individual or a business entity can select a strong brand for their future goods and services or determine whether the present brand is inherently strong.
- Generic Mark: The Generic mark, is considered as the brand’s weakest form as it refers to the class of product or services. A brand becomes generic once it enjoys immense popularity and widespread recognition and the consuming public starts recognising the class of product and services with the brand itself and it loses its connection with the company that first created it. In most cases, it is just a generic phrase that everyone uses to refer to a certain product or service that you offer.Some brands start as ordinary brands and then become generic as they are utilized are band aid
- Descriptive Mark : The trademark in this category no longer refers to goods and services by the common word but they refer to characteristics of a product or its quality. You may seek the registration in descriptive marks by illustrating that your brand has earned distinctiveness, that is, you can show that when people hear or see your brand, they think of your products or services, not just any product or service with particular features.
Brands with descriptive trademarks have a significant market reach, allowing them to become acceptable trademarks for their owners. Examples include KFC, American Airlines, Whirlpool, Louis Vuitton, and Pepsi.
- Suggestive Mark: They outperform generic and descriptive marks together. This type of mark provides suggestions to the consumer to connect with products or services. They make considerably more precise references to the traits and characteristics of the goods and services. Good example of it is telephone logo of Whatsapp LLC.
- Arbitrary Mark: Arbitrary marks are dictionary phrases used to categorize goods and services that have nothing to do with the words themselves. The most well-known examples are ‘Apple’ and ‘Adobe.’ In layman’s language, arbitrary markings are seen as essentially effective marks because they have nothing to do with the goods or services they are meant to represent.
- Fanciful Mark: Finally, these marks are defined coin words or coined terms that have no meaning other than to indicate certain items or services and has never been used for product or services KODAK, for example, denotes nothing more than a photography brand; similarly, Twitter denotes nothing more than the name of a social media platform. More examples are available to help you understand. Walmart, Pepsi, Marlboro, Audi, and Ola, uber are all excellent examples of fanciful marks.
As a consequence, companies and trademark experts should use the five categories indicated above to discover which of the groups your brand belongs to. So, if you want to establish a new brand for your firm, your products and services should reflect that. Choose a brand that you can call your own and should avoid choosing a generic and descriptive word as your trademark.
Choosing the best type of trademark for your organization demands extensive research and professional advice. Furthermore, knowing the many ways your brand’s identity is protected may provide you with additional ideas if you are still in the creative process.
Knowing the parameters and extent of protection included in each type trademark is essential for companies both new and established, in maximizing their Intellectual Property portfolio.