LawFarm- Advice & Lawyers Online

Share on facebook
Share on linkedin

Essentials of Drafting a Trademark

For famous and established people, their name or any symbol identifying them would be enough to recognize their entire identity. That is what happens to a brand when it gets popularized and gains goodwill among people. Their singular name or symbol attracts the audience, customers and admirers. Therefore, drafting a trademark becomes an essential part of their business.

This essential part of their product which attracts customers is however open to the public. It is popular and so can reach the ends of the world and can also be copied for private gains. For example, any XYZ company can use your logo and attract customers and audiences who misidentify their company with yours’s.

A trademark registration will protect mishaps of such. A trademark can be typically a name, symbol, logo, design, image or any combination of these elements. In 1999, the Trade Mark Act laid down the procedure for registering a trademark. A registered trademark will provide you with a legal right to initiate an action against any third party who tries to use your brand name or symbol and thereby giving you an exclusive right of ownership over your own product and services. The trademark itself then becomes an important and valuable asset for your business. A registered trademark is also easily identified because now the product belongs to you. Once the trademark is registered it can last for eternity.  Even though a trademark registration needs to be renewed every 10 years, the identity it provides to your brand remains forever.

A trademark has to be distinctive, a particular sign is going to be an identification mark for a good or service, and then it should be capable enough to be exclusive and distinctive in nature, character and looks. Distinctiveness means no one can justifiably claim its use. The distinctiveness can be inherent as well as acquired.

A trademark should also enjoy national status. India also has obligations under the TRIPS agreement for the protection of trademarks, and others.

Trademark Search

In terms of steps, the first step taken for trademark drafting is an online trademark search. This is performed in the Indian Trademark Registry Database. This is where the distinctiveness of a trademark is determined. It helps in identifying if there is any similar trademark registered already or not. This also has three stages which are Preliminary, Comprehensive and lastly a bonus round where a logo is searched through Trademark Image Search. It eliminates any possibility of objection, infringement or opposition during or after the registration of a trademark.

While preparation of the application checklist for trademark registration must be considered. Here is the name of the applicant, the entity of the applicant, i.e, whether they are an individual, LLP, Partnership, Company or any other legal entity.

The filling for an application is done at the Trademark Registration Office through speed post or e-filing. This applicant has some requirements to fulfil and they are as follows:

1)    The documents must be printed or typewritten or handwritten.

2)    The language should be either Hindi or English.

3)    The document must contain the signatures of the applicant with either the date or the authority’s name, who is filling the application.

4)    In the case of e-fling, a digital signature will be required for signing the documents.

5)    The date and place of filing.

Then after the application is lodged, the trademark examiner starts the examination process to see if there are any issues regarding the trademark, if there are any discrepancies etc. Section 9 and 11 of the Trademark Act, 1999 speaks of occasions when the trademark can be objected to.

By Zoya Hossain