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Trademarks
Trademarks in India: Law & Procedure
 
A TRADEMARK is a word, phrase, symbol or design, or combination of words, phrases, symbols or designs is used in the course of trade which identifies and distinguishes the source of the goods or services of one enterprise from those of others. A SERVICE MARK is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product.  
 
Who Can Apply For A Trademark
Any person can apply for registration of a trademark to the Trademark Registry under whose jurisdiction the principal place of the business of the applicant in India falls. In case of a company about to be formed, anyone may apply in his name for subsequent assignment of the registration in the company’s favor.
 
Trademark Search
Before making an application for registration it is prudent to make an inspection of the already registered trademarks to ensure that registration may not be denied in view of resemblance of the proposed mark to an existing one or prohibited one.
 
Filing and Prosecuting Trademark Applications
An application for trademark may be made on Form TM-1 with prescribed fee of Rs. 4000/- [ as per jurisdiction] at the office of the Trade Marks Registry, located at Mumbai, Delhi, Kolkata, Chennai and Ahmedabad depending on the place where the applicant resides or has his principle place of business. The application is examined to ascertain whether it is distinctive and does not conflict with existing registered or pending trademarks and examination report issued. If it is found be acceptable then it is advertised in the Trade Marks Journal to allow others to oppose the registration. If there is no opposition or if the opposition is decided in favour of the applicant then the mark is registered and a certificate of registration is issued. If the applicant’s response does not overcome all objections, the Registrar will issue a final refusal. The applicant may then appeal to the Intellectual Property Appellate Board, an administrative tribunal.
 
A common ground for refusal is likelihood of confusion between the applicant’s mark with registered mark or pending prior mark. Marks, which are merely descriptive in relation to the applicant’s goods or services, or a feature of the goods or services, may also be refused registration. Marks consisting of geographic terms or surnames may also be refused. Marks may be refused for other reasons as well.
 
International trademark protection
There is no system as yet wherein a single trademark application is sufficient to protect the trademark right internationally. However, Paris convention * provides certain privileges to member countries in trademark registration. A party that files their first trademark application in a member state of the Convention, such as India, can within six months of that filing date file applications in other member countries claiming the priority of the first application. If such a trademark is accepted for registration it will be deemed to have registered from the same date on which the application is made in the home country.
 
It is also possible to utilize multinational filing systems in certain regions in order to obtain trademark protection. For example, Belgium, the Netherlands and Luxembourg have a single trademark registry, commonly referred to as the Benelux Trademark Register. The European Union consisting of 15 countries has adopted its own trademark system, known as the Community Trademark. The African Organization for Intellectual Property (OAPI), a group of African nations, have replaced their national trademark offices with a common trademark office which offers a single trademark registration valid in all of the member states.
 
Almost all countries have trademark offices in which applications may be filed. Therefore, when contemplating trademark protection in various countries, it is most helpful to start with a list of countries where registered trademark protection is available. Deciding where to register a trademark involves various considerations. Countries where a trademark is currently in use, but prior use of trademark is not recognized, should be the first to be considered for seeking registered protection. If commencing use shortly or expanding use to other countries within a few years, then such countries should also be included. The last group of countries should be those have a history of unauthorized registration of other’s trademarks.

   
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