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Trademark Search in India

Trademark Search is the process of determining whether or not a proposed trademark already belongs to an existing entity and has previously been used, registered, or pending for registration with the concerned authorities. The purpose of trademark search is to ensure that a proposed trademark is available for use and registration without causing any damage or infringement to the intellectual property rights of an existing user. Trademark search is a crucial prerequisite to Trademark registration, so, let’s have a brief look at some of the methods involved:
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Official Trademark Database Search:

The first step in conducting a trademark search is to search through the official trademark database maintained by the Indian Trademark Registry. This database consists of information about all registered and pending trademark applications in India. The search can be conducted online through the Trademark Registry’s website, or by visiting the Trademark Registry office in person.

Common Law Search:

Apart from the registered trademarks, there may be unregistered trademarks that have been in use for a long time and have gained recognition and goodwill among consumers. These trademarks are protected under common laws instead of Trademark specific laws, and can be enforced by appropriate legal action. A Common Law search may involve reviewing sources such as business directories, trade publications, and websites to identify any similar brands that have been using the proposed mark in the market.
Common-Law-Search

Market Surveys:

A Market survey is a type of trademark search that seeks to determine the level of consumer recognition and association between a proposed trademark and the goods or services for which it is intended to be used. The purpose of a Market survey is to evaluate the likelihood of confusion between the proposed trademark and existing trademarks in the marketplace, and to determine whether the proposed trademark is distinctive and capable of serving as a source identifier for the goods or services in question. Market surveys can be conducted in various ways, including through online surveys, focus groups, and telephone or in-person interviews. The survey typically involves presenting the proposed trademark to a representative sample of consumers and asking them to provide their feedback.

Internet Search:

Internet searches are a type of trademark search that involves searching the internet for potential conflicts with a proposed trademark. The purpose of conducting an internet search is to identify any potential trademark infringement issues or conflicts with existing trademarks that may not have been discovered through other search methods. Internet searches may involve reviewing search engine results, social media platforms, online marketplaces, and other online sources of information to identify potentially conflicting trademarks.

Professional Trademark Search Services:

There are several professional trademark search services available in India that can conduct a comprehensive search of existing trademarks and give the most accurate results to determine whether the proposed trademark is available for use. These services use a combination of all the methods we have discussed above such as database searches, common law searches, market surveys, internet searches, etc.

Important considerations while conducting a Trademark search

  1. Trademark Classification: It is essential to search for existing trademarks similar to the proposed trademark in the same or related classes of goods and services to identify potential conflicts.The Indian Trademark Registry follows the Nice Classification system of goods and services for Trademark Search, which categorises goods and services into 45 classes.
  2. Knock-out Search: A knock-out search is a preliminary search that involves searching the trademark registry database to identify any identical or similar trademarks in the concerned class of goods or services. This search helps to identify potential conflicts early in the process and allows the applicant to make changes to the proposed trademark if necessary.
  3. Clearance Search: A clearance search involves conducting a more comprehensive and in-depth search to identify any similar trademarks that may pose a risk of infringement. This search includes database searches, common law searches, market surveys, and internet searches, and much more. A clearance search is crucial to ensure that the proposed trademark does not infringe on any existing trademarks and is absolutely unique.
  4. INN Search: In addition to the above methods, an INN (International Nonproprietary Name) search is necessary for trademarks proposed for pharmaceutical and healthcare products. The World Health Organization (WHO) maintains a database of recognized INNs, which are unique non-proprietary names given to active pharmaceutical ingredients. No proposed trademark belonging to the class of Pharmaceutical products can be similar to any of the recognized INN names.

FAQs

Q1: Can I conduct a trademark search on my own without professional assistance?

Yes, you can conduct a basic trademark search on your own using the Indian Trademark Public Search (ITPS) database. However, it is recommended to seek the guidance of a trademark attorney or professional for a comprehensive search and expert analysis of the results.

Q2: What should I do if my proposed trademark is similar to an existing registered trademark?

If your proposed trademark is similar to an existing registered trademark, it is advisable to consult with a trademark attorney to assess the potential risks for your trademark application and explore options for amendments. You may need to modify your trademark or conduct a detailed analysis of the distinctiveness of your mark and the possibilities of co-existence with the existing marks.

Q3: Is it mandatory to conduct a trademark search before filing an application?

While it is not mandatory to conduct a trademark search before filing an application, it is highly recommended. A trademark search helps you understand if your proposed mark is already in use or registered by someone else. Conducting a search can save you time, effort, and potential legal issues which arise in filing the incorrect trademark application.

Q4: Can I register a trademark that is already in use but not registered in India?

No, you cannot register a trademark that is already in use but not registered in India. The first-to-file principle applies in India, which means the first person or entity to file a trademark application for a particular mark will generally have priority over others. If a similar mark is already in use but not registered, it is still advisable to choose a distinct trademark to avoid potential conflicts.

Q5: How long does it take to complete a trademark search in India?

The time taken to complete a trademark search in India can vary depending on various factors such as the complexity of the search, the volume of existing trademarks, and the efficiency of the search process. Generally, a basic search can be completed within a few hours or a day, while a comprehensive search may take a few days to weeks for thorough analysis and evaluation.

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