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TRADEMARKS : IMPORTANCE AND WHY REGISTER THEM?

A trademark can be a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof, which is capable of being represented graphically and distinguishes the goods or services of one person from those of others.

When starting a new business, there are so many aspects that need to be taken care of for setting up a business. There are chances a trade mark may not be in your priority list of things to be done. Irrespective, of whether your business is small or big, as a business person or corporate executive, it is essential to understand the importance of a trade mark for a business. I have listed below few of the main reasons as to why a trade mark is important for your business:-

1. TradeMarks act as source identifier of your business: Your trademarks are your identity badges which enable consumers to know that the goods and/or services offered under a specific trademark are originating from you. By just looking at the logo one knows that the goods bearing the same originate from the house of Tata.

2. TradeMarks enable customers to choose their preferred goods and/or services: There are so many companies offering same or identical goods or services and it is difficult for the consumers to identify which goods or services are offered by you. It is here where the role of a trademark comes into play. A trademark helps a consumer to choose their preferred goods and/or services from the sea of goods and services available in the marketplace. Thus, trademarks help you to create your own identity distinct from your competitors and let your products stand out in the crowd, easily identifiable by your costumers.

3. TradeMarks help you to effectively communicate with your clients: TradeMarks are an effective communication tool which can easily cut across all borders, cultures and languages. Popular trademarks are recognised by people living in different countries, speaking different languages & belonging to different cultures.

Through a single trademark, you can effectively communicate to the customers the intellectual and emotional characteristics about your company & you, and convey about your company's reputation and the goods & services offered.

4. TradeMarks are valuable assets for your company: TradeMarks are intangible assets owned by a company. A trademark is an intellectual property which can be sold or purchased (Assignment) or licensed or used for character merchandising or franchising. As the reputation of your company grows, the value of your trademark will also grow. In fact, popular brands have huge commercial value e.g. the brand value of Amazon is US$ 315,505 million as per the report “Most Valuable Brandz 2019” available on https://www.brandz.com/Global.

5. TradeMarks help you to expand your business: If you are able to establish your trademark and garner reputation, you can use the same to leverage your business. Brand expansion or brand extension is an effective marketing tool used by companies, whereby they use the reputation and credibility of an established trade mark to enter into a new product line. The Dove trade mark was initially used for beauty soap bars but now the said trade mark is used for a wide range of personal care products including Body Wash, Lotions, Deodorants, Shampoos & Conditioners.

6. TradeMarks live forever: If you are serious about your trademark, you can use it forever. Registration of a trade mark is not mandatory. However, to avail statutory protection you can get your trade mark registered by paying a nominal fee and your trade mark registration will be valid for a period of 10 years. Subject to renewal every ten years, the trade mark registration will remain alive forever.

As mentioned above, even though registration of a trade mark is not mandatory, registering the same under the TradeMarks Act, 1999 (hereinafter referred to as the Act) brings along the following benefits:-

  1. Registration of a trade mark, if valid, gives the registered proprietor an exclusive right to use the trade mark in relation to the goods or services in respect of which the trade mark is registered.
  2. As per Section 31 of the Act, registration of a trade mark is a prima facie evidence of its validity in all legal proceedings.
  3. Registration of a trade mark enables the licensee of the said trade mark to be registered as the Registered User for the same. The Act provides that apart from the Registered Proprietor, the Registered User can also institute proceedings for infringement in his own name.
  4. A registered proprietor of the trade mark is given statutory remedy under Section 28 of the Act and can obtain relief in respect of infringement of the trade mark. Although, the Act provides Common Law remedy of Passing Off for unregistered TradeMarks, the burden of proof is comparatively higher in a suit for Passing Off than in a suit for Infringement.
  5. Registration of a trade mark also gives the Registered Proprietor and the Registered User the benefit of forum for filing the infringement suit as provided under Section 134(2) of the Act. As per the said provision, the Registered Proprietor or Registered User can file the suit for infringement where they actually and voluntarily reside or carry on business or personally work for gain. Whereas, in case of an unregistered trade mark the Passing Off suit can be instituted only where the Defendant resides or carries on business or where the cause of action has arisen.
  6. Registered Proprietor is entitled and in fact, should use the symbol ® alongwith its registered trade mark. The same acts as a notice to the competitors and discourages them from using the same or similar trade mark for their business.
  7. A registered trade mark will reflect in the search of the TradeMarks Registry's database and also objection will be raised by the TradeMarks Registry at the Examination stage if any competitor wishes to seek protection for same or similar trade mark. Thus, acting as a deterrent.
  8. For filing a Madrid Application seeking registration of the trade mark in other countries, it is essential that the trade mark application for the said trade mark should be filed or registered in India.
  9. Registration of trademark has persuasive value in other jurisdictions where the Proprietor wishes to seek protection for the trademark.
  10. The proprietor or licensee of a registered trademark can get the same registered with the Custom Houses to prohibit the importation of any infringing or counterfeit products.

Apropos, there is no right time to register your trademark. The earliest the better. So, don't wait, just go ahead and register it before you lose it to someone else.

By: Kanika Aeri
The author can also be reached at aerikanika@gmail.com


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