Establishing a brand is essential for the business or enterprise's growth. Some features of a brand comprise significant safeguard forms of intellectual property called Trademarks. It is a unique sign, logo, or band by an organization or individual applying to the commerce articles to make the product stand out from other traders.
The Trademarks Act 1999 is the decree that formulates the laws for Trademarks in India. In addition, this Act conforms with the TRIPS agreement. Accordingly, trademarks are used to put off violations and imitations. Nevertheless, there are registered trademarks and unregistered trademarks.
Trademark registration in India is not compulsory, but securing your brand's identity is sensible. Let's explore both of them and find out their distinctions.
Registered Trademarks
A registered trademark provides exceptional rights to the registered owner to use the mark for his products and services under Section 28 of the Trademark Act. The trademarks are registered for ten years and can be easily renewed.
Trademark registration online is for the following reasons:
- Secures the profitable goodwill of a trader, and he can sue in case of matching trademark usage.
- Advances goods and services.
- Recognizes the source of goods and services and publicizes them.
- Protects the public from purchasing bad-quality goods.
- The Trademarks Act 1999 supervises the entire registration procedure. It proffers trademark registration via numerous provisions. In addition, Chapter Four of the Trademarks Act mentions the trademark registration effects.
- Also, Section 27 of the Trademark Act reflects that no measures can be taken to violate unregistered trademarks. Section 31 of the Trademark Act makes apparent registration evidence of validity.
What are the advantages of getting trademark registration online?
Trademark registration online provides a dominant right to the mark in a specific region. It allows the owner of any registered trademark to prevent any illegal use of the trademark based on its goods and services.
Moreover, the test is to assure whether a customer of the services or goods will get perplexed by the eccentricity of the source or the foundation. Additionally, the encroachment of a registered trademark can lead to the filing of legal suits and eradicating the obstacles of portraying the owner's proof because of trademark registration.
Unregistered Trademarks
Unregistered trademarks do not have registration under the Trademark Act and can be utilized for goods and services without any legal perks. Nevertheless, unregistered trademarks can avail of security under the common law.
Although no suit for breach is permissible for unregistered trademarks under the Section 27 Act, they can secure safety under the mutual law tort of passing off. Still, it is mandatory to ascertain that an unregistered trademark has high standing for goods, services, or businesses to avail the passing of a law.
There are important elements of a passing off action as follows:
- The applicant has to prove that there is a resemblance in the trade names.
- The litigant is deceivingly passing off the goods of the applicant.
- There is a misunderstanding in the customer's minds.
- The test is to examine a man with impaired memory and average intelligence confusion.
Core differences between registered trademarks and unregistered trademarks:
1. Authenticity under registration
A legally registered trademark is a word, logo, or symbol with the national trademark registry for the source or company of the goods. On the other hand, an unregistered trademark has no official registration but is employed by the company without any agreement from a particular authority.
2. Security under Law
A registered trademark is limited under the Trade Mark Act 1999, while an unregistered trademark owner obtains protection under Common law. The trademark rights under common law are not so authoritative under the rights of a registered trademark.
3. Legality of Goodwill
In legal proceedings, obtaining trademark registration online have the advantage of authority. On the contrary, the unregistered trademark exhibits the legitimacy and goodwill appended to its trademark.
4. Validity
The trademark registration is for ten years and avails its renewal upon the termination of its registration period. In the case of unregistered trademarks, it is the owner's legal responsibility to attest the time duration till the reputation of the goods or services is sustained in the market.
5. Burden of Proof
When the validity of a registered trademark faces challenges, the burden of proof is with the opponent. The owner of an unlisted trademark bears the responsibility of proving its ownership.
6. Ownership right
If there is trademark registration, then national protection is given to the owner. Conversely, enforceability is restricted to a given region in which the owner has a reputation.
7. Law remedies
A suit for trademark breach can be introduced for unlawful usage of registered trademarks by third parties.
In addition, a suit for passing off can be commenced for unauthorized usage of unregistered trademarks by third parties.
8. TM symbol Application
The owner uses the TM symbol after they apply for the trademark on their services or goods. TM symbol delegates that the trademark utilized by the owner is a trademark of that specific owner. The logo is usually written in small font and is placed next to the trademark. In addition, the unregistered trademark can use the trademark symbol or TM but owns no right to use the ® symbol.
9. ® Symbol Application
The ® symbol is a manifestation of a registered trademark. As a trademark availed its registration efficiently without any opponent and the issuance of a certificate of trademark registration, the owner employs the ® logo with the ™ logo.
Process for Trademark registration in India
- Trademark exploration and selection
- Registrar application for trademark registration
- Application number allocated to the applicant
- Scanning
- Data access
- Assessment and dispatch of the examination report
- Certificate issuance
The Final Takeaway
Trademark registration in India protects the trademark from any contravention that assists the registered trademark holders. As a result, it is imperative to register a trademark to generate goodwill in the market.
Every company, individual, partnership, or organization must apply for trademark registration to make an identity of its products and services and acquire great benefits.
If you find the trademark registration procedure quite tricky, you must reach out to Lawgical India, as we attach the required documents properly and keep your data confidential. You can easily focus on your other business tasks while choosing us to register your trademark.
