Question 1. What Is A Trademark?
A trademark is a word, phrase, symbol, or design (or a combination of any of these) that identifies the source of a product or service and distinguishes it from competitors.
Question 2. What Can Be Trademarked?
Trademark registration can be granted on distinctive names, logos and slogans. You might want to seek a trademark for a product name, company name, company logo, or tagline.
For example: “Nike”, the Nike swoosh design, and “Just Do It” are all trademarks owned by Nike to distinguish their products from other athletic companies. But keep in mind that trademark protection only applies to a particular category of goods and services. Nike Inc. may own the mark on a variety of shoes, clothing, sporting goods, etc. But there’s also a Nike Corporation in Sweden that’s involved in heavy machinery, like hydraulic lifting jacks.
Question 3. How Do I Know If A Name Is Available For Me To Use For My Company, Product, Or Service?
Before you incorporate or register your business with your state, you’ll need to check the state’s database of company names and make sure the name you want isn’t already in use. Name conflicts are one of the main reasons many LLC, corporation, or DBA applications get rejected. At this point, you should also conduct a free trademark search to check if your business name is available to use at the federal level.
It’s also important to know that you can still infringe on someone else’s mark even if they’ve never formally registered it with the USPTO. For this reason, you should also run a comprehensive nationwide trademark search into state and local databases (beyond just your own state). This should include common law and county registrars.
Question 4. When Should I Or Can I Use The Trademark Symbol? And What’s The Difference Between Tm And ®?
Before you have registered a trademark with the USPTO, you may use the TM symbol. After a trademark is registered with the USPTO, you have the right to use ® in your trademark. Many companies choose to use the TM or ® symbol with the first appearance of the company or product name in a document, and then drop the symbol for each appearance after that.
Question 5. What Are The Benefits Of Registering A Trademark?
By registering for U.S. Federal Trademark protection, you’ll be eligible for several benefits, including:
- Treble damages in some cases of infringement
- The right to use ® in your trademark
- A streamlined process for securing your domains and usernames at social sites like Facebook, Twitter, and YouTube
- Significantly stronger protection than ‘common law’ (aka. unregistered) marks. This can make it much easier to recover your property, let’s say if someone happens to use your company name as their Twitter handle.
Question 6. If I’ve Already Registered My Name With The State, Do I Still Need A Trademark?
When you incorporate, form an LLC, or file a DBA (Doing Business As) for your new business, this process registers your business name with your state’s secretary of state. Before approving your application, the state checks that your name is distinguishable from all other business names registered in the state. Once approved, the business name is yours, and yours alone, to use within the state. This prevents anyone else from using your name within your state, but it doesn’t offer any kind of protection in the other 49 states.
If you’ve started a business that’s physically tied to your state (i.e. a hair salon or restaurant) and have no plans on expanding into other states, registering your name with the state or county might be enough brand protection for you. However, if you’re planning on conducting business outside your own state (i.e. you sell a product or you provide services and some of your clients may live elsewhere), you should look into trademark protection with the USPTO.
Question 7. How Are Trademarks Registered And How Much Does It Cost?
To register your business name, you’ll need to file an application with the USPTO: you can file either directly with the USPTO or have an online legal filing service handle it for you. Expect to pay approximately $325 per class in application fees that your mark would fall under and the process can take anywhere from 6-12 months once you submit your application.
It’s also smart to perform a comprehensive trademark search before starting the application process to make sure your name is available (you won’t get an application refund just because your name isn’t available).
While the process of registering a trademark is more involved than registering a DBA, rights to your name will be enforced by both the federal and state governments. As you’re getting your company off the ground, remember that your name represents your brand and business, so take the right steps up front to protect your identity.
Question 8. How Is The Trademarks Act 1999 Different From The Trade And Merchandising Marks Act 1958?
Enactment of the Trademarks Act 1999 is a big step forward from the Trade and Merchandise Marks Act 1958 and the Trademark Act 1940.
The newly enacted Act has some features not present in the 1958 Act and these are:-
- Registration of service marks, collective marks and certification trademarks.
- Increasing the period of registration and renewal from 7 years to 10 years.
- Allowing filing of single application for registration in more than one class.
- Enhanced punishment for offences related to trademarks.
- Exhaustive definitions for terms frequently used.
- Simplified procedure for registration of registered users and enlarged scope of permitted use.
- Constitution of an Appellate Board for speedy disposal of appeals and rectification applications which at present lie before High Court.
Question 9. How Is “trademark” Defined?
A trademark is a distinctive sign, which identifies certain goods or services as those produced or provided by a specific person or enterprise. A trademark may be one or a combination of words, letters and numerals. It may also consist of drawings, symbols, three-dimensional colours and combination of colours. It is used by traders/companies/firms etc to distinguish their goods and services from those of their competitors. A consumer associates some level of quality/price/prestige with the goods of a particular trademark. In other words the consumer uses the trademark for making a choice while buying a particular product. There are so many examples in our day to day life such as TATA, BATA, Liberty, Brooke Bond, Dabur, Baidyanath, Park Avenue, AIL and so on. Trademarks do not protect the design or the ideas behind the goods or services from imitation or duplication, but prevent other traders/company/firm from deceiving customers into believing that goods or services actually produced by them were produced by the trademark holder.
Question 10. What Are “well-known Trademarks”?
Well-known trademarks in relation to any goods or services, means a mark which has become known to a substantial segment of the public which uses such goods or receives such services that the use of such mark in relation to other goods or services is likely to be taken as indicating a connection in the course of trade or rendering of services between those goods or services and a person using the mark in relation to the firstmentioned goods or services.
Question 11. What Is The Meaning Of “service” In The Trademark Act 1999?
Service means service of any description which is made available to potential users and includes the provision of services in connection with business of any industrial or commercial matters such as banking, communication, education, financing, insurance, chit funds, real estate, transport, storage, material treatment, processing, supply of electrical or other energy, boarding, lodging, entertainment, amusement, construction, repair, conveying of news or information and advertising.
Question 12. How Are The Terms “certification Trademarks” And “collective Marks” Defined In The Act?
Certification trade mark means a mark capable of distinguishing the goods or services in connection with which it is used in the course of trade which are certified by the proprietor of the mark in respect of origin, material, mode of manufacture of goods or performance of services, quality and accuracy. Collective Mark means a trademark distinguishing the goods or services of an association of persons (not being a partnership within the meaning of the Indian Partnership Act, 1932)
Question 13. What Is The Term Of A Registered Trademark?
The initial registration of a trademark shall be for a period of ten years but may be renewed from time to time for an unlimited period by payment of the renewal fees.
Question 14. What Is The Madrid Agreement?
The Madrid Agreement was adopted on April 14, 1891 to facilitate protection of a trademark or service mark in several countries by means of a single international registration. As on July15, 1999, 54 countries are party to this Agreement mainly belonging to Europe, countries of Africa and four countries in the Far East namely, China, the Democratic People’s Republic of Korea, Mongolia and Vietnam. The United Kingdom, the United States of America, most Latin American countries, Japan and India are not signatories to this agreement. The Agreement covers both trademarks and service marks.
Question 15. What Is The Madrid Protocol?
The Protocol relating to the Madrid Agreement concerning the International Registration of Marks was adopted at Madrid on June27, 1989. The Protocol, which entered into force on December1, 1995, retains the basic features of the Madrid Agreement. As on July15, 1999, 39 countries have acceded to the Protocol. The Protocol was formed to removesome of the features of the Madrid Agreement, which posed some obstacles to accession by several countries.
These features are:
- For an international registration, it is essential to first register a mark at the national level. The time required for obtaining a mark at the national level varies from country to country. Hence some parties do suffer.
- Within one year, a designated member country has to examine and issue a notice of refusal by giving all the grounds for refusal. The period was considered short.
- A uniform fee is paid for the designation of a member country. This was found to be inappropriate for countries with high level of national fees.
- An international registration is linked to the basic registration during the initial five years and the former gets cancelled if latter is cancelled. The fact, that grounds under which a mark is cancelled in the country of origin need not necessarily exist in every other designated country, is overlooked.
- The only working language of the Madrid Agreement is French.
Innovations introduced by the Madrid Protocol are:
- An international application need not necessarily be based on a registration made by the Office of Origin but can also be based on an application filed with the Office of Origin. This makes it convenient for countries with full examination system where the national registration takes time. It also makes it possible to claim the right of priority of six months under the Paris Convention.
- A Contracting Party can receive the fee under the existing Madrid Treaty system through its share in the international fees collected for each designation made as in the Madrid Treaty. Alternatively, the member country can choose “Individual fee” system for each designation made, which should be an amount not more than the national fee for a ten-year registration. The “Individual fee” system makes an attractive proposition for countries with high level of national fees.
- It is possible to transform an international registration into national or regional application in the designated Contracting Parties, if the basic registration is cancelled for some reasons, as in the case of “Central Attack”.
- An applicant may choose to base an international registration in any of the Contracting States with which he has connection through nationality, domicile or establishment.
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