Entrepreneurs in India slowly but steadily recognise the importance of intellectual property. This article discusses intellectual properties such as copyright, patents, and trademarks, as well as how they can help you protect your entrepreneurial ideas. Continue reading to find out which of the three options best suits your company’s needs.

What is Intellectual Property?

Intellectual property (IP) includes scientific discoveries, literary and creative works, designs, and so on. The three most commonly known types of intellectual properties that you should be aware of are:

• Trademarks
• Patents
• Copyrights

What are Intellectual Property Rights (IPR)?

Intellectual Property Rights (IPRs) are legal rights that allow you to safeguard your intellectual inventions. These rights aid in the development of your company’s brand.

What is a Trademark, and what are its advantages?

A trademark is any word, symbol, or logo that helps consumers distinguish a product from its competitors. Trademark registration is an essential part of your company’s branding since they keep it distinct and distinctive. The exclusive right to use, sell, and alter your brand or goods in any way is granted by trademark registration.

Trademark registration is necessary since it aids in the development of your company’s brand image. Trademarks in India are divided into 45 different types or divisions. For example, a class could be footwear, metal export, or face cream manufacture. Your trademark can be registered in any of the above-mentioned classes.

Advantages of owning your Trademark:

The registered trademark informs the consumer/customer and any third parties that the product(s) or service(s) delivered under that brand belongs to the trademark applicant.

A registered trademark allows you to use, promote, and market the goodwill associated with the mark. It also aids in the avoidance of trademark infringement and the retention of your client’s loyalty.

What is a Patent, and what are its advantages?

The purpose of a patent is to gain a competitive advantage. A patent gives you the exclusive right to create, use, trade, or import what you’ve invented after it’s been granted. The patent owner is the sole owner of the rights to sell or utilise the patent.

Patents are particularly significant in the industrial and pharmaceutical industries. The creator/company is the exclusive owner of the right to use the process with a patent in place.

Advantages of obtaining your Patent:

You can choose who may and who may not use the patented invention for the length of the patent’s protection.

Patent protection, bans anyone from commercialising, manufacturing, distributing, importing, or selling your invention without your permission.

What is Copyright, and what are its advantages?

Copyright corresponds to the exclusive right to produce, reproduce, promote, and sell your original work. Musical, literary, artistic, architectural, or theatrical works make up the majority of these pieces.

Programs, compilations, databases, and tables are examples of electronic works considered literary works. Furthermore, registering copyright serves as a deterrent to copycats misrepresenting or exploiting your original work.

Advantages of acquiring your Copyright:

Anyone with similar business interests cannot copy or use your brand. Someone with a different commercial interest, on the other hand, could copy or use it.

Only the creator or whoever has registered copyright has the right to sell/copy or use a part of the work for any reason.

Protection is granted for 60 years from the year in which your work is made available to the public (e.g. cinematograph films and photographs)

What is the difference between a Trademark vs. Patent vs. Copyright?

Any business that wants to succeed in today’s competitive market must-have brand recognition and value. Trademarks are the most straightforward way for you to accomplish this. The Trademarks Act protects registered trademarks in India and specifies the rules for trademark registration and penalties for infringement. 

In India, trademark infringement is a cognizable offense, meaning that the offender could face criminal and civil charges. In this article, we discuss about the types of contraventions and how to avoid trademark infringement:.

What Is Trademark Infringement?

The Trademarks Act establishes the laws governing trademark registration, protection, and penalties for infringement in India. Trademarks are treated as intellectual property all around the world. 

Trademark  or brand infringement occurs when a third party has not been granted permission to use the intellectual property, specifically a trademark of a company/business related to the service or product that the company provides. This may confuse the general public when purchasing that service or product.

What are the types of Trademark Infringement?

When investigating trademark infringement in an offline business or an online marketplace, it’s important to understand that there are two categories of infringement:

Direct Trademark Infringement

• Direct Infringement occurs when a registered trademark’s exclusive rights are used without permission. It is a type of trademark infringement under the Trademark Act. It includes the following elements:
  • Unauthorised access:
    • It is considered trademark infringement when a registered mark is used by someone not authorised by the registered trademark owners.
    • It is not considered infringement if the mark is utilised with the permission of the registered trademark proprietor.
  • Identical or deceptively similar:
    • The unauthorized person’s trademark must be identical to or deceptively similar to the registered trademark. The word “deceptively similar” simply suggests that the average customer may be confused by the marks and mistake them for one another.
    • The keyword here is ‘may,’ it only has to be demonstrated that this is a possibility, not that it will happen. It is sufficient to prove infringement if there is a likelihood of misrecognition of the marks.
  • Registered trademark:
    • The Act protects only trademarks that have been registered under India’s trademark registration.
    • To resolve disputes when an unregistered mark is infringed, the common law of passing off is utilised. It is a tort law applied when a person or group of people suffers hurt or damage to their goodwill due to their actions.
  • Class of goods or services:
    • Trademark law states that to be considered a trademark infringement, the unauthorised use of the mark must be to promote products or services in the same class as the registered brand.

Indirect Trademark Infringement

• In comparison to direct infringement, there is no specific provision in the Act dealing with indirect infringement. This isn’t to say that there’s no risk of indirect infringement. Indirect violation can be divided into the following two categories:
  • Contributory infringement:
    It is made up of simply two elements:-
    • When the person is aware of the brand infringement but takes no action to avoid infringing.
    • When the person contributes meaningfully to the direct infringement.
      There is no exception in the situation of contributory infringement since the contributing infringer has no prospect of acting in good faith.
  • Vicarious liability:
    A person will be vicariously liable:
    • When the person can control the actions of the direct infringer.
    • When a person gains from the infringement.
    • When a person knows about the infringement and contributes to it.

    If a corporation violates the Act, the entire corporation is accountable. Everyone in the company will be liable for indirect infringement, not only the lead infringer. The only exception is someone who acts in good faith and without knowledge of the infringement.

What are the different penalties under Trademark Infringement?

In India, trademark infringement is a serious offence, which means that the offender could face both criminal and civil prosecution. The registration of a trademark is also not necessary by Indian law for the institution of civil or criminal proceedings. This is related to the common law idea of passing off, as previously stated. The court may award the following remedies in the case of trademark infringement:

• Temporary injunction
• Permanent injunction
• Damages
• Account of profits (damages equal to the earnings made as a result of the infringement)
• Destruction of goods using the infringing mark
• Cost of legal proceedings

In the event of a criminal case, the court will impose the following penalties:

• Imprisonment for a minimum of six months and a maximum of three years.
• A punishment of not less than Rs 50,000 and up to Rs 2 lakh may be imposed.

Trademark Infringement Case Studies:

Amul Dairy

The Kaira District Cooperative Milk Producers Union, also known as Amul Dairy, and the Gujarat Cooperative Milk Marketing Foundation (GCMMF), which markets the Amul brand, have filed a complaint in the Federal Court of Canada against Amul Canada and four other companies. The dairy learned in January 2020 that Amul Canada had duplicated its trademark “Amul” and the emblem “Amul—The Taste of India.” On the social media platform LinkedIn, a false profile was also created.

Amul has won a trademark infringement dispute outside of India after the Federal Court of Canada recently ruled in its favour. The Intellectual Property Appellate Board of Canada recently granted Amul trademark recognition as a result of the order. After winning a trademark violation case in the Federal Court of Canada, the country’s largest dairy cooperative society will also be rewarded 32,733 Canadian dollars.

Starbucks vs Sardarbuksh

Starbucks filed a lawsuit against Sardarbuksh for using a logo that is strikingly similar to Starbucks’ and using a name that provides a sense of similarity between the two. Starbucks won the case. The court ordered the defendant to change their name but not their emblem because Starbucks had changed theirs.

It was noted that the judgement pronounced also took into account the fact that the similarity in the names and logos had caused economic hurdles for Starbucks. Starbucks, a global brand that has accumulated goodwill due to its long history in the coffee business, and that the defendants were aware of this and did what they did to gain attention.

The Coca Cola Company v. Bisleri International Pvt. Ltd.

Bisleri was the defendant in this case due to an agreement that allowed the transfer and assignment of MAAZA trademark rights. It provided Coca-Cola with the formulation rights, intellectual property rights, and know-how, as well as the goodwill associated with bottling and distributing a mango fruit drink called MAAZA in India.

The defendant firm has filed a trademark application in Turkey for the term MAAZA and has begun exporting the identical fruit drink under that name. Coca-Cola sought a permanent injunction and infringement damages for passing off and trademark infringement after the defender, Bisleri, gave it to them.

In the end, Bisleri was found to have violated the interim injunction by utilising the brand MAAZA in India and even offering it for export, which was a clear example of trademark infringement.

Conclusion

Every business must understand that once a trademark is registered, it gets the privilege to avail legal protection against trademark infringement under the Trademark Act of India. Indulging in trademark infringing can hamper the company’s growth. Most of the trademark infringement cases consider proof of prior use even if the trademark is not registered.

It is best to hire professional business services to ensure protection against such futuristic compliance issues. Make sure to have a trademark search before you unknowingly use some other brand’s intellectual property. Using identical or similar marks, knowingly or unknowingly, will be considered as Trademark Infringement..

Why Choose Incorp?

Our expert team of professionals have the expertise and skills to guide you in any way possible, from protecting your brand to registering your Trademark. Whether you are the plaintiff or the defendant, Incorp can assist you with legal advice in the following:

• Registering your Trademark
• Drafting agreements
• Avoiding legal issues

Creating a brand requires consistent effort and hard work. In today’s competitive market, it’s challenging to make your products or services stand out from the crowd. To ensure the success of your business, you must create a distinct identity for your product or service.

How can you achieve this distinct identity? By registering for a Trademark!

In this article, we shall guide you through the trademark registration process in India and the advantages of the same. Scroll till the end to find out 7 easy steps to register for trademarks!

What Is A Trademark?

A trademark is a unique sign, design, or expression. It is used to identify a specific company or distinguish its goods or services from others.

In India, you can register the following as a trademark for your business:

Why Must You Register A Trademark?

• A trademark can be associated with your brand or product. Owning a trademark improves the quality of your product or service. It promotes trust and encourages potential customers to remain loyal to your company.
• A registered trademark is a company’s intellectual property as well as an intangible asset. In addition, the cost of registration is low.
• Furthermore, you will be protected under the Trademark Act.
• You can make establishing your brand hassle-free by opting for trademark registration online.

What Are The Advantages Of  Trademark Registration?

• Once you finish the trademark registration process, the consumer and any third party shall be aware that the products or services provided under a registered trademark belong to the trademark applicant.
• In addition, the registered trademark gives the exclusive right to use, sell, and modify the brand or goods in any way.
• It is critical to register a trademark in India and other countries of commercial interest. It grants you the legal right to use your trademark exclusively in such countries.
• It also prevents any third party from using your trademarked brand name or logo without your permission. It also safeguards your products or services against violation. Thus, a trademark helps you to protect your brand from third-parties.
• Most importantly, your trademark registered in India is valid for ten years. It is renewable for another ten years. As long as you keep renewing the trademark, it will not expire and you will be able to continue to benefit from the trademark rights.
• Furthermore, the owner has the option of transferring their registered trademark. When the business is sold, you can transfer a common law trademark.
• The person who applies for trademark registration first will be given priority for registration.

What Are The Documents Required For Applying For Trademark Registration In India?

You need the following documents when applying for a trademark:

• Logo or Brand name that you want to register.
• Details about the classes in which the trademark will be registered
• A Power of Attorney authorizes an attorney to file the trademark registration on your behalf.
• If your company is a start-up or an MSME, you must have a certificate of registration. You can get a 50% discount on the government fee.
• If you have been using a trademark in India for your business before applying for registration, you may register the trademark from the date of first use. In that case, you must provide an affidavit as well as documentary proof such as invoices, registration certificates, and so on.

What Is The Trademark Registration Process In India?

To file a trademark, you need to be aware of the following steps:

Select a Trademark:

• To differentiate your products and services in this market scenario, your trademark should be unique, non-descriptive, and different.

Conduct search for Trademark:

• This search lets you know if there are any similar trademarks out there. You can find out if they are registered or not. Thus, allowing you to avoid trademark lawsuits.

Fill an application:

• You must file a trademark registration application with the correct class and details. The necessary forms must be submitted to the Controller General’s Office of Patents, Designs, and Trademarks.
• When a trademark application is filed, the Trade Marks Registry will assign an application number.
• Using the online trademark search function, the application can then be tracked online.
• You can also comply with the entire trademark registration process online as well.
• Upon receiving the application number, the applicant may place the TM symbol next to the registered mark.

Apply for Vienna Codification:

• Once the application is filed, the Indian Trade Marks Registry assigns a Vienna code to the trademark if it contains symbolic elements/logos.

Conduct Trademark Inspection:

• The Trademark Registry will then review your application to ensure that the basic requirements have been met.
• The registry generates a trademark examination report based on the results of this inspection. The examiner may accept the application unconditionally, conditionally, or object to it.
• If the application is accepted unconditionally, it is published in the trademark journal.
• If it is accepted subject to conditions, then the applicant will be given one month to fulfill the condition before the trademark application is rejected.
• If the application is still not accepted after fulfilling the conditions, a hearing can be requested. If the examiner believes the trademark should be registered, he will publish it.
• If someone objects to the application, the applicant must file a response to the examination report. The response should state the reason for registering the trademark applied for and shall help overcome the objection.
• If the examiner believes that the objection(s) are still pending, a hearing will be held to resolve the matter.
• If the objections are overruled during the hearing, the trademark application is accepted and published in the journal.

Publish about your Trademark Registration in Indian Journals:

• Following the registrar’s acceptance of the trademark application, the specified trademark will be published in the Journal.
• Once published, there is a chance that the public will object because they believe such a trademark will harm their business.
• Your trademark registration process will be completed if no objections are received within four months of publication.
• A third party may file an objection to your registration application within four months of its publication in the journal. In this case, the trademark hearing officer will hold a hearing.
• Both the applicant and the opponent will have the opportunity to attend the hearing. The hearing will determine whether or not the request is accepted by the hearing officer.

Receive Trademark Registration Certificate:

• A trademark registration certificate will be prepared if there are no objections or contradictions to the requestor opposition.
• Once a trademark registration certificate is issued, the trademark is considered the owner’s registered trademark, allowing the owner to use the trademark entirely.
• The ® symbol can now be used next to a registered trademark.

Conclusion

A registered trademark is an intellectual property asset that protects your company’s products and/or services from infringement by third parties. A trademark should increase the brand value of your products and services while also creating brand recognition.

By trademark registration in india, you can increase your overall business value, goodwill, reputation, and net worth in the industry.

Why Choose Incorp?

Our service range includes:

• Conducting a thorough search on the website of the Controller General of Patents, Designs, and Trademarks.
• This search helps to determine whether your firm is eligible to begin the trademark registration process in India.

We will advise you on which classes to apply for:

• Creating and submitting a trademark registration application form
• Creating an affidavit to claim prior use of the mark
• Creating a response to a Trademark Registry objection or opposition from a third party
• Attending hearings

Our other areas of service include:

• Changes to the application or registration of a trademark
• Assistance with Litigation
• Assistance in the process of renewing registered trademarks
• Assistance in the preparation of franchising and licensing agreements, assignment deeds, and other legal documents.