Trademark Registration Eligibility in India
"PROTECTING THE BRAND IS EQUAL TO PROTECTING THE BUSINESS."
Trademark registration in India is a complex process and requires a thorough understanding of the various regulations and requirements of the Trademark Registry. It is important to know who is eligible for trademark registration in order to ensure that the process is completed successfully and within the timeframe.
This article will provide an overview of the eligibility requirements for trademark registration in India, outline the basic terms that each entity must follow to register and the process of registration.
Trademark Registration in India is open to individuals and business organizations whether registered or not. Trademark can be applied in the name of an Individual or in the name of an organization. Also, Trademark can be applied by two more individuals jointly without having an organization as well.
Who files the Trademark Application?
The applicant has to authorize a Trademark Agent through a Power of Attorney for filing the Trademark Application with the Trademark Registry. The Trademark agent then file the application with the Trademark Registry and obtains the acknowledgement. All the correspondence / communications regarding the TM registration process will be addressed to the Trademark Agent.
Categories of Trademark Applicants:
From the applicability of filing fee, the applicants are categorized as follows:
- Individual/Sole Proprietor
- StartUp
- Small Enterprise
- Others
- Association of PersonsBody Corporate
- Government Department
- Hindu Undivided Family
- Joint Applicants (Two or more Individuals together)
- Joint Firm Limited Liability Partnership
- Partnership
- Single Firm
- Society
- Statutory body
- Trust
- Others – like Foreign Nationals / Foreign Companies
Trademark can be applied in the name of an Individual or in the name of an organization. Also, Trademark can be applied by two more individuals jointly without having an organization as well.
Eligibility for Trademark Registration
Trademark registrations protect distinctive trademarks, phrases, or original concepts. Individuals, companies, and charitable organisations can all apply to register trademarks in India. Yet, particular requirements exist for each type of individual or business when submitting a trademark application. The following entities can register as trademarks in India.
An individual
An individual (Person) may submit a trademark application and gain trademark registration for a symbol or word they intend to use without engaging in any commercial activity.
Joint Owners
Joint owners of a business may jointly apply for a trademark, and the application must include both owners’ names.
Proprietorship Firm
A proprietorship firm may submit a trademark application in the name of its owner but not in the name of the business or proprietorship. Both the proprietorship name and the business name you give in your application will be considered independently.
Partnership Firm
A partnership business with a maximum of 10 members must list all partners’ names in the application when filing for a trademark. If a minor partner is present, the guardian speaking on their behalf must be identified.
Limited Liability Partnership/LLP
The application should be made in the name of the Limited Liability Partnership in this situation. The partners in this corporation each have their own unique identity. The trademark belongs to the LLP, so the partners cannot be the applicant.
Indian Company
Any Indian business, whether private limited, limited or in another form, is required to submit a trademark application in the business’s name. As every incorporated business has its own identity, it should be noted that a company’s director cannot also be a trademark applicant.
Foreign Company
If a foreign-incorporated company files for a trademark in India, it must be done so under the name registered abroad. Here, it’s crucial to indicate the registration’s kind, the nation it came from, and the law.
Trust or Society
The controlling trustee, chairperson, or secretary of a trust or society must be identified when a trademark application is submitted on their behalf.
Key Requirements
Here are the key requirements for trademark registration eligibility in India:
Distinctiveness: To be eligible for trademark registration, a mark must possess distinctive character. It should be capable of distinguishing your goods or services from those of others in the marketplace. A distinctive mark is one that is unique, not commonly used, and not descriptive of the goods or services it represents. Descriptive marks, such as "Red Apples" for apples, are generally not considered distinctive unless they have acquired secondary meaning through extensive use and recognition.
Non-offensiveness: The proposed trademark should not be offensive, vulgar, or contrary to law, morality, or public order. Marks that are likely to cause offense or are considered socially unacceptable are unlikely to be registered.
Non-deceptiveness: The trademark should not be deceptive or misleading. It should not create confusion among consumers regarding the nature, quality, or origin of the goods or services. Misleading marks that may lead consumers to believe a product or service has certain characteristics or origins that it does not possess are generally not eligible for registration.
Non-descriptiveness: The trademark should not consist of a word or phrase that directly describes the characteristics, features, or qualities of the goods or services. Descriptive terms that are commonly used to identify the products or services in question cannot be registered as trademarks unless they have acquired distinctiveness through prior use and recognition.
Non-genericness: The trademark should not be a common or generic term used in the relevant trade or industry. Generic terms that refer to the goods or services themselves, such as "Bread" for bread products, cannot be registered as trademarks since they are necessary for other traders to use in the ordinary course of their business.
Not prohibited under the Act: The Trade Marks Act, 1999, explicitly prohibits certain types of marks from registration. These include marks that are identical or deceptively similar to existing well-known trademarks, marks that are likely to deceive or cause confusion, marks that are scandalous or obscene, marks that contain religious symbols or names, or marks that are prohibited under any other law.
Created & Posted by Sony Garg
Accountant at TAXAJ
TAXAJ is a consortium of CA, CS, Advocates & Professionals from specific fields to provide you a One Stop Solution for all your Business, Financial, Taxation & Legal Matters under One Roof. Some of them are: Launch Your Start-Up Company/Business, Trademark & Brand Registration, Digital Marketing, E-Stamp Paper Online, Closure of Business, Legal Services, Payroll Services, etc. For any further queries related to this or anything else visit TAXAJ
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