Don't file a Trademark until you read this Article!!!
Being a firm who are Subject Matter Experts in the field of trademark registration we normally advise our clients to be aware of common errors one may make while filing for a trademark, normally we head the process on our own to avoid such errors for our clients but if our clients want just our insights we thrive to give them the best insights possible. In this article, you will learn the most common mistakes and problems you may face while applying for a trademark and how you have to overcome them.
Most common problems faced while registering for a Trademark in India:
1. The two-basic condition for the registration of the Trademark is:
(i) If the Trademark is capable or eligible for graphical representation.
(ii) If the trademark is capable of being distinguishing the goods or services of one person from that of the others. However, fulfilling these basic conditions doesn’t guarantee the registration of a trademark as the Trademark Act prescribed two further hurdles for clearance before a Trademark can be registered, these are:
--> Absolute grounds for refusal (Sec. 9): This deals with the objections that are primarily related to the mark by itself and for those which are not register-able due to their inheritance. This ground of refusal is aimed at protecting the interests of the general public instead of any other specific third party.
--> Relative grounds for refusal (Sec. 11): It is significantly known the range of scrutinizes a trademark has to go through for registration on the grounds of the same or similar trademark has been already registered or an application for registration is filed by some other third party for the mark. The purpose of these grounds of refusal is to protect the rights of a party holding a similar or identical mark and to safeguard the general public from getting confused or deceived.
2. The applied trademark must not be the same or similar to an already registered trademark or a mark for which a registration application is already pending before the Registrar. The expression of any similar means of visual or phonetic similarity. The Registrar shall also have regards to the actual nature of the goods, the purpose of the goods and channel of its trade for the goods while deciding the similarity between trademark applied underclasses of marked goods (Class-1 to 34). However, the Registrar shall consider the nature of the services, the purpose of services, usage of services and the normal business relationship, while deciding to the similarity between trademark applied under the classes marked for the services (Class-35 to 45).
3. If the applied trademark falls under any of the absolute grounds of refusal, which are generally reasons like the brand is devoid of any distinctive character or in other words, it is not capable of being distinguished from other goods or services provided by another personal or enterprise.
4. If the applied mark indicates its actual kind, quality, quantity, intended purpose, value, geographical origin or the time of production of the goods or the time of provision if it is service-based or any other characteristic of the goods or services that the mark represents.
5. Whether the mark applied indicates any specific mark which has become widely customary in the current language or is a general practice of the trade in the market. Further, a general check whether the applied mark is of such a nature, which could deceive the public at large extent or cause confusion among the buyers by being very similar.
6. Whether the applied mark is likely to hurt any religious sentiments of any classes or any section of citizens in India or if it is a mark that is scandalous or an obscene matter. The mark should not be something that is prohibited under Emblems and Names (under the ‘Prevention of Improper Use’) Act, 1950. The applied trademark must be in relation to the shape of goods which would automatically result in the nature of good itself by giving substantial value.
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