What is a Trademark?
Businesses and enterprises use logos, designs, or certain words to differentiate themselves from the competition. It is easier for consumers to identify a brand and quality of product by using these designs or words. In order to identify their goods and services, these companies use trademarks. Trademarks are protected from infringement under Indian law(s) as intellectual property.
The Trademark Act, 1999 governs the registration, protection, and penalties of trademarks. Companies and consumers are both protected by such laws. A trademark registration under the Act is valid for an additional 10 years if the renewal fees are paid in time.
Registration of Trademark?
A trademark can be registered in accordance with Section 18 of the Act. It can take one to two years to register a trademark after filing an application. As soon as you file your registration application, you will be given an allotment number that you can use to check the status of your application. Your application will be processed as such:
First, the mark will go for Vienna codification
It outlines the process for registering a trademark with all the required documents in Section 18.
In Section 18 of the Act, trademark registration is outlined. A trademark examiner will examine the mark for any infringements.
It is outlined in Section 18 of the Act how to register a trademark
The Trademark Journal is outlined in Section 18 of the Trademark Act.
There is an extra month in Section 18 of the Act for third parties and the public to object to trademark registrations.
Upon filing a trademark application, a registration certificate will be issued and the applicant will have ten years of protection from the date the application was filed.
In the registration process, an objection is one of the first steps. Any third party may file it as well as the Examiner/Registrar. Examiners and Registrars can file objections under Section 9 (Absolute Grounds of Refusal) and 11 (Relative Grounds of Refusal) on two primary grounds –
If the application contains incorrect or incomplete information
In the event that there is already a trademark(s) of a similar nature.
Third parties have the right to object to trademark registrations as a matter of public interest. Objecting to a trademark registration can be done in two ways.
Upon publication in the Trademark Journal or other publication,
Marks are used before they are registered by the applicant. An Adv Before Acceptance will be assigned to this application.
The application will be marked “Opposed” after an objection is filed. The opposing party must state the grounds for opposing the trademark registration in its opposition. The examiner is required to provide the applicant with an opportunity to defend his application under the Act.
What should I do if I am objected to?
A copy of the objection, along with its grounds, will be sent to the applicant as soon as it has been filed.
It is first necessary to counter an objection.
You must respond within two months of receiving the objection notice
In the absence of a trademark objection within two months, an application will be regarded as abandoned.
Following the filing of the counter, the trademark will be registered if the Registrar rules in the applicant’s favor. If he finds in favor of the opposing party, the trademark will be removed from the Journal. This decision may be appealed to the Intellectual Property Appellate Board (IPAB):
Three months must pass after the Registrar’s order is passed before an appeal can be filed.
The applicant must file a petition for condonation of delay with a fine of Rs 2,500 if the appeal is filed after the period of 3 months. In the event the IPAB accepts the reason, an appeal will be posted for hearing.
Trademark applications must comply with the Trademark (Applications, Appeals and Fees to the Intellectual Property Appellate Board) Rules (hereinafter, the Trademark rules).
Applicants are responsible for verifying all documentation
On the date of presentation, every application must be endorsed by a Deputy Registrar
If the Deputy Registrar finds any defects in the application, he will notify the applicant
Applications must be resubmitted within two months if defects are found.
Failure to do so will result in the application being abandoned by the Deputy Registrar
Deputy Registrars will register orderly applications and assign serial numbers.
A case will be heard by the IPAB once it has been registered. A hearing will be held in the jurisdiction under which the case falls according to rule 2(m). A date will be set for the hearing. As such, the hearing will take place.
A decision will be made by the IPAB based on the submissions made by both parties.
When a party fails to appear for a hearing, IPAB can take the following actions:
Make a merits judgment
Give an order ex parte (in the absence of one party)
Upon dismissal or ex parte decision, the petitioner has 30 days from the date of the ruling to challenge the earlier decision. This case will be heard by IPAB and its decision will be upheld. If an applicant is aggrieved by IPAB orders, a high court with competent jurisdiction may hear the appeal. It is also possible to appeal to the Supreme Court of India in the future.