Trademark Symbols And Registration In India
Trademarks protect the owners of goods or services who engage in business markets. These marks have an impact on the interests of businesses, proprietors, or service providers because they assist consumers in identifying their goods in the market. The Trademarks Act, 1999 (“Act”), read with applicable Rules, is the law in India that provides trademark protection. The Act protects goods or services represented by such marks, and assigning such marks in its literal sense is referred to as trademark making.
Trademark marking is a common practice in which a status symbol is assigned to identify a word, logo, slogan, or other items as a trademark. There are three types of trademark symbols in use, which are commonly seen as “Superscripts” or a letter slightly above the brand name or logo. When a product is trademarked, a trademark status symbol is placed after the product’s name or logo to inform the public that this item is trademarked and must not be reproduced (without permission).
Unregistered trademarks are represented by the letters ‘TM,’ while service trademarks, which are used by brands in the service sector, are represented by the letters ‘SM.’ The most common type of trademark is a registered trademark, which is represented by a ‘R’ enclosed in a circle or a ‘®’. This basically serves as a public notice about the claim you have in that product or service. It is important to note here, however, that a legally enforceable “claim” will be limited to ‘®’ only, as it represents registration.
Registered Trademark Symbols
A name, slogan, or logo that has been officially registered with the Office of Registrar of Trademarks, Ministry of Industry and Commerce, Government of India, is referred to as a Registered Trademark Symbol. Registering a trademark is an important step because it gives you exclusive rights to that name/symbol as well as its status in your industry. This will also assist you in filing a claim for infringement if you discover another business of a similar nature using your name/symbol and wish to pursue legal action for such use of your name.
The presence of the ‘®’ symbol is not required, but it is indicative of the owner’s trademark claim as well as the ‘identity’ of a trademark that has been registered under the law. The ability to be distinguishable in the public eye, as well as the public’s perception and identification of such a mark that directs consumers to take notice of the product or service, is central to a proprietor’s claim of the mark.
As long as it is authentic, this marking also indicates that the mark has passed the minimum threshold or legal requirements, indicating that it is not prohibited by law. To be more specific, to be registered in India, a trademark must not be prohibited under Section 11 on relative grounds or Section 13 on absolute grounds. Furthermore, in cases where trademark rights have been licensed to third parties, such a symbol serves as a guarantee and assures the public of its association with the owner of that mark.
Indian Law Penalty Provisions
Assigning such symbols is mostly a matter of custom and is not required by law. Such a practice is essentially used to educate those who might otherwise be unaware of the legality of a trademark.
The Indian Trademarks Act, 1999, on the other hand, penalizes individuals who are found to be falsely representing a trademark as “registered” when it is not, with imprisonment up to three years and fines under Section 107. The section continues by stating that any type of representation concerning a mark in which the word “registered” or any other expression, symbol, or sign that expressly or implicitly indicates registration (such as ®, Reg. or Regd., etc.) is used shall be deemed to be registered under the Trademarks Registry.
In the landmark case of William Bailey (Birmingham) Ltd.(1935) 52, RPC 137, it was observed that the applicants had intentionally used the words “Registered” in order to deceive the public and gain the advantage of such portrayed authentication which was considered to be an advantage they were not entitled to. Further, in the case of Sagar Beedi Works v. Bharath Beedi Works, 1981 PTC 269 the Bombay High Court held that when a mark is not registered but is referred to as “Registered” it is enough to conclude that the individual who is found to have done this, did it with an intention to unfairly gain advantage and that further, protection awarded in cases of ‘honest concurrent use’ under Section12 of the Act for such unregistered should not be permitted.
While there is no provision of law in the Trademark Act that requires trademark marking, using a mark without completing the registration process will result in a penalty. Thus, using symbols such as ® or any other similar indication of registration, excluding ‘TM/SM,’ is permitted only if the trademark has met the requirements for a valid trademark and is registered with the Trademarks Registry. This critical, but often overlooked, step should be considered alongside other compliance measures not only to avoid being penalized for wrongful use but also to provide consumers with more assurance about the brand and its reputation.
(As cited in mondaq.com)
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– You could see Procedure of Trademark in India here.
– You could visit here to see Required documents of filing trademark in India.
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