cpc

Trademark class for software

This query is : Resolved 
 

(Querist)
22 May 2020

Respected Experts,

What is difference between Class 9 & Class 42 for software in Trademark.

To be specific, I have a software which will be available to users on subscription basis for a year. Will this be covered under Class 9 or Class 42?

Also whether license key sent on email or in CD, will it make any difference to class applicability?

Regards,


KISHAN DUTT RETD JUDGE (Expert)
22 May 2020

Classes like 9 and 42 are so similar, in fact, that Class 9 includes downloadable software while Class 42 includes non-downloadable software.

Adv Shailendra Deshpande (Expert)
23 May 2020

Class 9 is mostly used by software developers to create new software & installations for further use. For e.g. bootable CD to install OS or mobile app (apk file). While class 42 is used when software is used as service. For e.g. software consultants & software graphic designers to protect their designs.
Licence key if does not have any algorithm and have only plain numerals, then will not create issue of class. The nature of product/service must be considered before final decision of class.

Dr J C Vashista (Expert)
23 May 2020

There are 45 trademark classes under trademark law. There classes are divided on the basis of product or services you offer. Some famous trademark classes here:

• Trademark Class 35: The class 35 covers the Advertising; Business management; Business administration; Office functions under its ambit.

• Trademark Class 9: The class 9 of the trademark covers Scientific, nautical, surveying, photographic, cinematographic, optical, weighing, measuring, signalling, checking [supervision], life-saving and teaching apparatus and instruments; Apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling electricity; Apparatus for recording, transmission or reproduction of sound or images; Magnetic data carriers, recording discs; Compact discs, dvds and other digital recording media; Mechanisms for coin-operated apparatus; Cash registers, calculating machines, data processing equipment, computers; Computer software; Fire-extinguishing apparatus under its ambit.

• Trademark class 42: Scientific and technological services and research and design relating thereto; Industrial analysis and research services; Design and development of computer hardware and software.

• Trademark class 45: The class 45 of the trademark covers Legal services; Security services for the physical protection of tangible property and individuals;; Personal and social services rendered by others to meet the needs of individuals.

Definition of 9 and 42 is available on net besides bare act.

Prima facie it is an academic question.

Rajendra K Goyal (Expert)
23 May 2020

Trademark Class 9 pertains Cash registers, calculating machines and data processing equipment, teaching apparatus, magnetic data carriers, etc.


Class 42 Trademark: Any scientific and technological services or research or any development of any computer hardware or software or any legal services. It particularly includes the services provided by an engineer (designing, making blueprints etc) or any research for medical services. But it does not include any services under business research covered under class 35, or any service under the class 36, 37, 44.

Class 9 falls under goods category while class 42 relates to service

Dipen (Querist)
23 May 2020

Experts,
Thanks for the opinion!

One more query,

I can see a TM registered upto 2018. However cannot see if renewed, however the status is still registered valid upto 2018 if I do a TM search online. Can I apply with that TM even if registered by some other person but not renewed after validity?

N.J.S.Rajkumar alias narasimha (Expert)
23 May 2020

TM is the intangible asset of the concern irrespective of whether it is renewed or not. It could be renewed after few years also basing on the justifiable reasons.

Rajendra K Goyal (Expert)
24 May 2020

If no fee for renewal of Trade Mar filed Registrar can remove it after following due procedure.
If not renewed, it can be renewed in 6 months after due date on payment of fees.
If in case the renewal period has lapsed and no application was filed prior to the expiration, then the proprietor can apply for restoration of the trademark. However, such an application has to be made from 6 months to 1 year after the expiration of such registration. The proprietor has to file a prescribed form to request restoration.

Raj Kumar Makkad (Expert)
24 May 2020

There are total 45 classes as per Nice classification of trademarks which are comprised of various goods and services falling under each of the classifications. Class 1 to 34 covers goods/ products whereas class 35 to 45 covers services.



Therefore, to answer your first question, class 9 includes “computer software” in the goods category whereas class 42 includes “technological services” in the services category (in your case, service of making available the software to your users or any other service concerning your software). Class 9 and 42 are allied classes, thus you can register your trademark in both the classes so that nobody else can use your trademark in either goods category or services category.



Further class applicability does not depend upon sending the license key via email or CD.




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