Who can file Trademark in India?

Author :- Sonu Kumar of ICFAI University Dehradun

Starting up a business involves a very complex procedure. Amongst that trademark is one significant factor that one has to keep in mind to protect the identity of the business. Businesses need to maintain their identity, reputation to capture the market and create the goodwill that can be possible through the registration and protection of its trademark.

What is a Trademark?

A trademark is an intellectual property that is exhibited as a logo, symbol, sign, design, with the purpose to differentiate goods or products of one business from that of others. It is defined under section 2(zb) of the Trademarks Act, 1999. The customers used to identify or distinguish the different products through these trademarks only. The most important thing here is that trademarks must appeal to the eyes. The owner of a trademark may be an individual, firm, company, partnership, or another form of business.

Who can file a Trademark in India?

As per section 18(1) of the Trademarks Act, 1999 any person who contends to be the proprietor of a trademark in respect of the goods or services can file a trademark application. For the purpose of filinga ‘person’ includes natural person, body incorporate, partnership firm, Hindu Undivided Family, an association of persons (in case of collective trademarks), trust, joint proprietor, society, government authority, or undertaking.

1. An individual: The person or individual can file a trademark application irrespective of the fact that he is doing any business or not. A person not involved in any business can also file for a trademark for his future use. The person has to furnish his full name along the application.
2. Joint Owners: Joint Owners are those which come together for filing the trademark application jointly. In such a case, both the persons are required to submit their names in the trademark application.
3. Proprietorship Firm: In the case of a proprietorship firm, the name of the proprietors shall be mentioned in the application. The name of a business or proprietorship firm cannot be given in the place of the person’s name. However, the name of the proprietorship firm or business firm shall be mentioned in addition to the individual applicant’s name.
4. Partnership Firm: The name of all the partners shall be mentioned in the trademark application. In case any of the partners is minor then the name of the representative guardian shall be there.
5. Limited Liability Partnership: Here, the application must be made in the name of LLP and not in the name of partners because LLP has its own separate legal entity.
6. Trust or Society:  The name of the Managing Trustee or Chairman or Secretary shall be given in the applicant’s name and not the name of trust or society.
7. Foreign Company: The foreign company shall make an application in the name of it’s registered corporate name and has to mention the nature of registration, country of incorporation, and the laws under which the company is registered.

The application must be filed in the trademark office having jurisdiction of the principal place of business of the applicant in India. But, if the applicant’s business is situated outside India then the application shall be filed at the trademark office under whose jurisdiction the agent’s office is situated.

After the process of filing the application, the same is examined by the Trademark Registry to examine whether the applied trademark is already registered with some other proprietor or is there any similarity with the existing trademark. If any objection arises then, the registry issues an examination report in response to which the applicant has to file supportive documents along with the examination report within one month against that objection.

Afterward, the examination process, if the trademark is considered allowable then the acceptance order is issued by the Registry following which the trademark is published in the trademark journal. After publication, if no opposition is raised within 4 months of such publication then the trademark registration certificate is issued to the applicant. It usually takes 12- 15 months to complete registration where no opposition is filed by the third party.

Duration of Trademark Registration

The registered trademark is valid for the 10 years only after that it needs to be renewed for the next 10 years at the expiry of registration or the date of the last renewal of trademark.