A trademark popularly known as brand name, is an identification symbol which may be a word, a device, a label or logo etc. A trademark may be a word, letter a device or numeral or any combination thereof. It is better if it is simple in design. The ideal word for a trade mark is an invented word.

Words which are laudatory or which directly describes the character or quality of the goods should not be adopted. Geographical names connected with the reputation or quality of the goods for which registration is sought should not be adopted.

It is not possible to register a trade mark which is confusable with a trademark of another trader who has been using the trade mark earlier for the same goods or a trade mark which describes the character or quality of the goods which other traders may reasonably want to use in the course of their business. The mark should not conflict with a trade mark already registered or pending registration in respect of similar goods. Also some marks are prohibited from registration under the directions of the Government

After following the above procedure an application for trademark may be made on form TM-1 with prescribed fee at the appropriate office of the Trade Marks Registry. The appropriate office means the office within whose territorial limits.

Procedure to be followed before applying for registration

Before applying for registration it is desirable to obtain preliminary advice regarding the distinctiveness of your mark from the Registrar by making a request on form TM-55.

A request can be made on form TM-54 with a prescribed fee to the Trade Marks Registry to obtain an official report to ascertain whether any identical or deceptively similar trade mark exists on the Register or pending for registration for the same goods or a personal inspection or search through the records of the Trade Marks Registry on may be done.

An application in the prescribed form with govt. fee in one of the five office of the Trade Marks Registry located at Mumbai, Chennai, Delhi, Kolkata 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 trade marks and examination report issued. If it is found to be acceptable then it is accepted and 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.

Rights conferred by registration

The registration of a trademark confers on the registered proprietor of the trade mark the exclusive right to use the trade mark in relation to the goods in respect of which the trad mark is registered and to obtain the relief in respect of infringement of the trade mark by others. The registration of a trade mark is not compulsory. However, without registration a owner of a trad mark cannot bring an action for infringement to protect the mark if it is copied by others. Suing for infringement of a trade mark is much simpler than launching a common law action for passing off to protect any unregistered trade mark.

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