Creating a right Trademark for your business
Why a Trademark is needed?
When we start thinking about doing a business, forming an organization or an association, or doing some new kind of work or activity, the first thing which always pops up is ‘under what name’. A name or a mark or a symbol (logo) distinguishes the goods and services or activities of one person from those of another person or forms a source of identification by directly or indirectly referring to its origin. A Trademark serves as a link between the business and its customers; It serves as a symbol of trust built because of the good reputation associated with the goods and services and goodwill generated and accrued in the Trademark over the period.
Characteristics of a Good Trademark:
- A good Trademark should be easy to pronounce, and spell and should stay in the mind of the public.
- A good Trademark appeals to the eyes and ears of the customers.
- The Trademark should be distinctive, does not refer to or indicates the kind, quality, quantity, intended purpose, values, geographical origins or time of production of goods or rendering of the services or other characteristic of goods or services, and does not exclusively contain the marks or indication which have become customary in the current language or in bonafide and established practice of the Trade.
- The best Trademark is an invented and non-descriptive word.
The function of Trademark:
- A Trademark identifies the products and services.
- It guarantees the quality and source of the products and services.
- It advertises and promotes the products and services.
- It creates a lasting image in the mind of the public.
Why a Trademark has to be protected?
Forming a new name with a unique style requires ingenuity and a very creative and articulate mind. It is very important to protect such creative efforts so that the distinctive features are maintained throughout without them becoming diluted due to various reasons. A Trademark has an inherent right by virtue of common law generated by the use of the Trademark and the right is further validated and obtains a prima facie evidentiary recognition under the Statute by its registration with the Trademark Authority.
Creating a Trademark is a show of art, thoughts, perception, and imagination. A Trademark can be made by taking parts of commonly used words in one’s profession or trade and combining them to form a completely new word having no dictionary meaning but at the same time easily identifying the services for which it is to be used. Professionals, artists, and others who have become renowned for their works have registered their personal name or surname as a Trademark/brand name to safeguard the authenticity of their work with their name.
The best Trademark is an arbitrary or fanciful name that is coined and inherently distinctive. Coining a name is a challenging job. The name generally should be chosen in a manner that is catchy, unique and at the same time does not directly refer to or indicates the kind, quality, quantity, intended purpose, values, geographical origins, or time of production of goods or rendering of the services or other characteristic of goods or services. The name should be distinctive in character and at the same time should not have become customary in practice.
Often people combine uncommon words with common words or with alphabets and numerical or with a fanciful logo to form a Trademark. In doing so, they use descriptive words or indication, or logo which designates the source of goods or services, thus diluting the distinctive feature of the entire trademark. Many a time, the common words are already registered by another old user of Trademark. This error can be avoided if the proprietor takes due care in conducting a prior search. This simple practice will not only help the applicant to make a unique trademark, and will also clear their opposition stage, thus increasing the chance of obtaining registration. Such practice will streamline the process and will reduce the infringement cases pending before the Court and save time. Conducting due diligence of prior search is crucial for the pharmaceutical, medicinal and cosmetic industries, where the coining of the name often comprises of using the main molecules or the active ingredients of the drugs or products or its target (purpose or use of active ingredients) and because of which chances of infringement is very high.
Advantage of Registration
Registrations of a Trademark give an exclusive right to the Proprietor for the use of a registered trademark in respect of goods and services it has been registered and take appropriate legal action against anyone who is misusing or infringing their Trademark. Additionally, the registration of a Trademark gives an advantage to the proprietor to leverage the Trademark and obtain maximum benefit from it.
Duration of a Registration of a Trademark
In India, a Trademark is registered for 10 years from the date of the application and the registration can be further extended every 10 years by paying the renewal fees on time.
Use of symbol:
TM : To be applied on Trademark for which application for registration is filed with the Trademark Office.
R : To be applied on Trademark for which registration certificate is obtained from the Trademark Office.