India: Salient Features Of Trademark Rules, 2017

Last Updated: 8 March 2017
Article by Intepat Team

With effect from 6th March 2017, the new trademark rules came into existence. The intention is to simplify the whole trademark registration process and make it hassle-free and quick. It would in turn is expected to expedite the overall process of trademark administration.

E-filing and addition of email as an important part of address can be seen as an effort to further promote digitization. Along with these some other noteworthy features of the new rules are:

1. Sound marks are made registrable: The new trademark rules mentions, "Where an application for the registration of a trademark consists of a sound as a trademark, the reproduction of the same shall be submitted in the MP3 format not exceeding thirty seconds' length recorded on a medium which allows for easy and clearly audible replaying accompanied with a graphical representation of its notations". Such application has to be filed on Form TM – A with the sound in a MP3 format. It is necessary to provide the musical notes in the application.

2. 3D Marks are made registrable: It includes shape and packaging of goods. This kind of application is also filed in Form TM-A.

The new trademark rules mentions in this regard:

Where the application contains a statement to the effect that the trademark is a three dimensional trademark, the reproduction of the trademark shall consist of a two dimensional Graphic or photographic reproduction as follows, namely:—

i) the reproduction furnished shall consist of three different view of the trademark;

ii) where, the Registrar considers that the reproduction of the trademark furnished by the applicant does not sufficiently show the particulars of the three dimensional trademark, he may call upon the applicant to furnish within two months, up to five further different views of the trademark and a description by words of the trademark;

where the Registrar considers the different views or description of the trademark referred to in clause (ii), still do not sufficiently show the particulars of the three dimensional trademark, he may call upon the applicant to furnish a specimen of the trademark.

3. E-filing is promoted: As a token of encouragement a discount of 10% is provided for e-filing. This can be seen as a move to promote digitization and go paperless.

4. Provisions pertaining to Well-known mark: As mentioned in Rule 124, any person can make a request to enlist a mark as a well-known mark along with statement of case, evidence and documents. The fee for it is Rs. 1, 00,000. The Department of Industrial Policy and promotion shall now maintain a list of well-known marks. It means that a brand can now apply for being included into this list on form TM-M after payment of fees of Rs 1 lakh. This change in particular may also help to improve the reputation of India's IP system and the country's poor score for protection of famous marks.

5. Separate Fees structure for an individual/startup/small enterprise and for others: There is a difference of around 50 % in the official fee structure of individual/startup/small enterprise and others. While for individual/startup/small enterprise fee is 5000 for physical filing and 4500 for e filing, it is 10000 for physical filing and 9000 (for e filing) for others. Here the meaning of Small Enterprise is:

a) in case of an enterprise engaged in the manufacture or production of goods, an enterprise where the investment in plant and machinery does not exceed the limit specified for a medium enterprise under clause (a) of sub-section (1) of section 7 of the Micro, Small and Medium Enterprises Development Act, 2006 (27 of 2006); and

b) In case of an enterprise engaged in providing or rendering of services, an enterprise where the investment in equipment is not more than the limit specified for a medium enterprise under clause (b) of sub-section (1) of section 7 of the Micro, Small and Medium Enterprises Development Act, 2006.

Explanation: "enterprise" means an industrial undertakings or a business concern or any other establishment, by whatever name called, engaged in the manufacture or production of goods in any manner pertain to any industry specified in the first schedule to the Industries (Development and Regulation) Act, 1951 (65 of 1951) or engages in providing or rendering or any services or services in such an industry.

Small Manufacturing Enterprises: The investment in plant and machinery is more than twenty five lakh rupees but does not exceed rupees 5 crores (Rupees five crores only).

Medium Manufacturing Enterprises: The investment in plant and machinery is more than rupees 5 crores but not exceeding Rs.10 crores (Rupees ten crores only).

Small Service Enterprises: The investment in equipment is more than 10 (Ten lakh rupees) but does not exceeds rupees 2 crores

Medium Service Enterprises: The investment in equipment is more than rupees 2 crores but does not exceed rupees 5 crores.

Indian applicants need to furnish their financial statements in order to claim their entity status

"Startup" means

i) an entity in India recognized as a startup by the competent authority under Startup India initiative,

ii) In case of a foreign entity, an entity fulfilling the criteria for turnover and period of incorporation / registration as per Startup India Initiative and submitting declaration to that effect.

Explanation: In calculating the turnover, reference rates of foreign currency of Reserve Bank of India shall prevail.

An entity will be identified as a startup:

I) Till up to five years from the date of incorporation.

II) If its turnover does not exceed 25 crores in the last five financial years.

III) It is working towards innovation, development, deployment, and commercialization of new products, processes, or services driven by technology or intellectual property.

6. Expedited processing of application: Under Rule 34, Applicants can make a request for express registration. On payment of additional fees, the application will be taken out of turn for examination, hearing and registration. It is mandatory to file a request online for this request. DIPP extended the provisions relating to expedited processing of an application for registration of a trademark up to registration stage. So far, it was only available up to examination stage.

7. Hearing via Video conferencing: Under Rule 115, any hearing could be conducted through video conferencing or any other audio visual communication. This is a very motivating measure to increase efficiency.

8. Number of forms has been cut down to 8 from the existing around 75 forms: All kinds of trade mark applications (single class, multi-class, collective marks etc.) is through the same form. Contested proceedings like opposition, rectification is through a single form. It seems to be a very positive step to make the whole process less tedious.

9. Fees increased drastically: This is the most noteworthy step. In many cases it has been increased by 100%. For a trade mark application in one class, it has been increased from Rs. 4,000/- to Rs. 9,000/-

10. E Service of documents: Under Rule 18, Communications sent by Trade Mark office through email will be understood as completed service. It will not be required to serve documents through post. This will increase the speed of registration process and is an extremely affirmative measure.

11. Reduced Adjournments: Under Rule 50, during an opposition hearing, a party is not entitled to ask for more than two adjournments. This will substantially help for the disposal of matters in time.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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