India: Why No Brand Is Small For Trademarking

Last Updated: 28 September 2017
Article by Paras Khurana

Do you think that your brand is so small that it does not require Trademark registration? In this world of cut-throat competition, a unique identity in the form of registration of your Brand as trade mark would increase the strength and value of your business. In India, where thousands of start-ups are in the queue, the most important thing in this scenario is brand recognition since intangible assets such as trademark inevitably increases the value of one's business thereby leading to relative ease in funding. Whether it be a small start-up or big company one of the first things to be done is marketing and advertising of the brand and investing capital for brand recognition.

So what will you do if someone else could trademark your brand's name because you haven't and then use that goodwill that you have created in the market to their undue advantage?

HOLD ON!!!!!

You have an option to file a suit for passing off against that person even if you have not filed trademark application. Passing off is a tort whereby the goods or services of a person are misrepresented or passed off as the goods or services of another. Section 27(2) of the Trade Marks Act 1999 gives clear mandate that nothing in the Act (for example, registration) would affect the rights of any person for instituting an action for passing-off. In other words, registration of a mark would not affect the right of action for passing off in respect of an earlier mark. The Hon'ble Delhi High Court in Century Traders v. Roshal Lal Duggal & Co. had clarified thatregistration of a trade mark in the Trade Marks Registry would be irrelevant in an action for passing-off. The Court, inter alia, held "Registration under the statute does not confer any new right to the mark claimed than what exist at common law. Common law rights are left wholly unaffected by registration".

However, it is always preferable to register your mark as such would increase one's rights in the said mark. Moreover, registration of mark and entry in the Register serves as a disclosure (or shout out) to the public at large to the effect that the mark is only to be associated with you.

SO WHAT TO DO?

Get Trademark filed.

It's never too late, get your mark/brand name filed as a Trademark. Moreover, one can file several applications in respect of a brand. For example, for NIKE, the word mark "Nike", the composite logo of NIKE in white stylised font, simply the white tick mark, and the tagline "Just Do It", all can be part of separate applications. If a mark is superimposed on a background, the said background can also be trademarked. It should be kept in mind that trademark is filed in respect of a certain class of goods and/or services in order to increase probability of registration during prosecution. Hence, one may file separate applications for a mark in different classes instead of a single application in multi-class category.

Trademark is not just an IP, it's your identity.

A Trademark helps you and your business to gain an identity. The customer on looking at the brand name or mark, as the case may be, should be able to associate the goods and/or services sold in relation to the mark exclusively to you. Trademark also gives you the legal strength to prevent anyone from using your name/brand.

Trademark Registration is worth every single penny you spend.

Trademark registration is not expensive and worth every penny one spends. Every one invests for securing his/her business and spending a little more (Around 3000-4000/- INR per class if individual or start-up/around 9000-10000/- per class in case of company) is always better than someone else profiting on the goodwill created in relation to your goods and services..

Be Smart while choosing your brand name.

Before choosing your brand name/mark always search for similar brands/marks in the market and choose unique mark (name/logo) for yourself. This will ensure a separate identity which shall prevent any legal notice/action from competitors.

How to search the availability of the name/mark :

Like I mentioned, no business is too small for trademark registration and you never know when it is going to hit off as a successful venture.

Protect your brand and Grow more.

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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