Any person can apply for registration of a trademark to the Trademark Registry under whose jurisdiction the principal place of the business of the applicant in India falls.
In case of a company about to be formed, anyone may apply in his name for subsequent assignment of the registration in the company’s favor.
Before making an application for registration it is prudent to make an inspection of the already registered trademarks to ensure that registration may not be denied in view of resemblance of the proposed mark to an existing one or prohibited one.
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Filing and Prosecuting Trademark Applications :- An application for trademark may be made on Form TM-1 with prescribed fee of Rs. 2500/- at one of the five office of the Trade Marks Registry located at Mumbai, Delhi, Kolkata, Chennai and Ahmadabad 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 trademarks and examination report issued.
If it is found be acceptable then it is advertised in the Trade Marks Journal to allow others to oppose the registration.
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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.
If the applicant’s response does not overcome all objections, the Registrar will issue a final refusal. The applicant may then appeal to the Intellectual Property Appellate Board, an administrative tribunal.
A common ground for refusal is likelihood of confusion between the applicant’s mark with registered mark or pending prior mark. Marks, which are merely descriptive in relation to the applicant’s goods or services, or a feature of the goods or services, may also be refused registration. Marks consisting of geographic terms or surnames may also be refused. Marks may be refused for other reasons as well.
Duration of a Trademark:
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The term of a trademark registration is a period often years. The renewal is possible for further period of 10 years each.
Unlike patents, copyrights or industrial design trademark rights canes indefinitely if the owner continues to use the mark. However, if a registered trademark is not renewed, it is liable to be removed from the register.
Use of the land “(R)” Symbol:
Anyone who claims rights in a mark can use the TM (trademark) or SM (service mark) designation with the mark to alert the public of the claim. It is not necessary to have a registration, or even a pending application, to use these designations. The claim may or may not be valid. The registration symbol, (R), may only be used when the mark is registered.