What is a trade mark ?

A trade mark popularly known as brand name, is an identification symbol which may be a word, a device, a label or numeral etc. or a combination thereof used in the course of trade to enable the purchasing public to distinguish one trader's goods from similar goods of other traders.

How to select a Trade Mark ?

a. A trade mark may be a word, letter a device or numeral or any combination thereof. It is better if it is simple in design.

b. If it is a word it should be easy to speak, spell and remember.

c. The ideal word for a trade mark is an invented or coined word.

d. Words which are laudatory or which directly describes the character or quality of the goods should not be adopted.

e. Geographical names connected with the reputation or quality of the goods for which registration is sought should not be adopted.

Procedure to be followed before applying for registration.

a. It is advisable to conduct a market survey through an investigating agency etc. to ascertain whether any identical or deceptively similar mark is used for the same goods by any other person in the market.

b. It is advisable not to imitate another persons trade mark or any other well known trade mark even if the goods are different.

Are all trade marks registrable ?

No. It is not possible to register a trade mark which is confusable with a trade mark of another trader who has been using the trade mark earlier for the same goods or a trade mark which describes the character or quality of the goods which other traders may reasonably want to use in the course of their business. The mark should not conflict with a trade mark already registered or pending registration in respect of similar goods. Also some marks are prohibited from registration under the directions of the Government.

Rights conferred by registration :-

 The registration of a trade mark confers on the registered proprietor of the trade mark the exclusive right to use the trade mark in relation to the goods in respect of which the trade mark is registered and to obtain the relief in respect of infringement of the trade mark by others. The registration of a trade mark is not compulsory. However, without registration a owner of a trade mark cannot bring an action for infringement to protect the mark if it is copied by others. Suing for infringment of a trade mark is much simpler than launching a common law action for passing off to protect any unregistered trade mark.

Is Registration of a trade mark compulsory ?

No. Registration of a trade mark is not compulsory, but without registration the owner of a trade mark cannot bring an action for infringement to protect his mark if it is used by others. Suing for infringement of a registered trade mark is much simple than launching a common law action for passing off to protect an unregistered trade mark in that the owner of a registered trade mark can base his case simply upon the fact that his mark has been registered.

Safeguards to be taken by the owner of a registered trade mark to protect his rights :-

a. He should use and renew the trade mark regularly and in time.

b. If his trade mark is copied by others he should file a suit for infringement and passing off and also take criminal action.

c. He should keep a watch in respect of trade marks advertised in the Trade Marks Journal and institute opposition proceedings if identical or deceptively similar trade marks are published.

d. He should initiate rectification proceedings if an identical or deceptively similar trade mark is registered.