This article on ‘How to conduct a Trademark availability search online on IP India Website?‘ was written by Shashi Yadav, an intern at Legal Upanishad.
Introduction
This article will help you in filing the trademark of your services or product, but before that, it is also important to understand what is a trademark and how to conduct a trademark availability search online, and also how to do a patent search too to understand the complex idea of filing the trademark. It seems difficult but it is very easy and important at the same time. This article will help in making you understand the importance of filing your idea etc so that no one can take advantage and earn profits out of your idea.
In India before 1940, there was no trademark legislation. Several trademark infringement issues developed, which were handled under Section 54 of the Specific Relief Act, 1877, and registration was adjudicated under the Indian Registration Act, 1908. To address these issues, the Indian [1]Trademark Act was enacted in 1940. As trade and commerce expanded with the implementation of the trademark legislation, the need for trademark protection soared.
What is Trademark?
A trademark can be a word, design, logo, symbol, or a combination of all. These trademarks are used to create a brand identity so that the brand value cannot be exploited by another person or brand. It is the identification of the source of the goods and services and not only the product itself. The trademark is defined in the Trademark Act, 1999 as, “trade mark means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include the shape of goods, their packaging, and combination of colours”
[2]The trademark is denoted by:
- TM (TM stands for an unregistered trademark. It is used to market or brand products).
- SM (used to denote an unregistered service mark. It is employed in the promotion or branding of services).
- R (letter R is surrounded by a circle and used for registered trademark).
What is a Patent Search?
[3]A patent search helps identify if there are already similar products in the existing market and whether these products have been patented in India or another country thus the chances of approving a product’s patent depends on the patent search.
A patent search can be done in two ways:
- Search for patents on the country’s local patent database.
- Search for patents in an international database.
To search for patents on the country’s local patent database, a specific website has been created which is the IP India Website. The website is https://ipindia.gov.in/.
How to Trademark availability search online
- Step 1: Trademark Class
Before a trademark availability search, it is important to know the trademark class. Trademark class has 45 classes where:
- 1-34 classes are product-based.
- 35-45th classes are services based.
These trademark classes are dependent on the nature of the business for example If an individual is giving legal services then they will come to the 45th class, thus it is important to know the product’s or service’s class before searching for the trademark availability.
- Step 2: To check the availability under the [4]class the service or product falls in
Visit the website: https://ipindiaonline.gov.in/tmrpublicsearch/frmmain.aspx
It is the official website of the government of India. After writing the wordmark, write the class where the product or service falls in and click on search. After the click on search, it will whether the product or service has been filed already or not. If it shows no records found then it means no product or service has been filed under the specific class with the same name thus making it available.
OR
[5]Another way to check the availability is through: https://ipindiaonline.gov.in/eregister/eregister.aspx
[6]It is also the government’s database where more details are provided as compared to the previous link mentioned above. Where you’ll get an option of “index type” after clicking on the “Pending marks” Fill in the brand name and you can get all the details of the filed trademark.
OR
[7]Once you’ve decided on a mark, you should run a search to see if it’s comparable to an already registered mark. You may do this yourself by visiting the Controller General’s website for Patents, Designs, and Trademarks. A public search option is available on the website. After selecting this option, you must select your class and search the online database.
OR
Another alternative is to obtain legal assistance, which, while more expensive, is the safer option. If your trademark is challenged, the overall cost of legal services will be lower. They will not only search, but they will also assist you with the entire process.
- Step 3: Form TM-A
You can file a single application for several classes, series, or collective trademarks. Form TM-A must be completed for this. This form allows you to register your trademark in more than one class. This form has two distinct cost brackets.
- Step 4: fee
[8]9,000 rupees or 10,000 rupees: If you are not a start-up, small business, or individual, you will fall into this category. You must pay Rs. 9,000 if you register the form electronically, or Rs. 10,000 if you file the form in person with the Office of Trade Marks.
OR
4,500 rupees or 5,000 rupees: This category includes individuals, small businesses, and new businesses. The fee for e-filing the form is Rs. 4,500, or Rs. 5,000 if you file the form in person.
Make cautious not to make any mistakes when filling out the form, since this may result in delays or even rejection of the application. You must fill out all of the requirements and provide an image of the trademark with dimensions of 9 by 5 cm. [9]You may be needed to submit five copies of the same document. When filing, the whole file must be supplied with two duplicates. You can submit it online, in person, or through an agent, whatever is most convenient for you. Confirmation of filing will be done instantly if done online, however, it may take up to 15-20 days if done manually.
Conclusion
So, here we can understand how a trademark availability search online is conducted. Many small businesses often lose their idea, services, or product to another company or individual as they consider paying the fee for a trademark as a negative aspect. It is important to understand that if you believe in your product, idea, or service then one should file for a trademark as the loss after it gets copied will be double what one will be paying for its trademark registration. Trademark registration grants the owner an exclusive right and differentiates the goods from comparable items from other firms.
Trademarks serve as intangible assets for the owner, protecting the brand for an extended period. A trademark grants the owner the exclusive right to use such phrases, logos, and slogans. In a market like India, brand protection and safety are critical. As a result, having a trademark registration in India is necessary rather than compelled.
REFERENCES
- “Trademark Act 1999”, Clear tax, May 10, 2022, available at https://cleartax.in/s/trademark-act-1999
- “Trademark”, Computer Hope, October 11, 2017, available at https://www.computerhope.com/jargon/t/trademark.htm
- Jayant Bhatt, “What is Patent?”, Legal Service India, Available at: https://www.legalserviceindia.com/articles/ptwy.htm
- The fourth Schedule to Trade Mark Rules,2002, Classification of goods and services – Name of the classes, Available at https://ipindiaonline.gov.in/tmrpublicsearch/classfication_goods_service.htm
- “Trade Marks in India”, SS Rana & Co, Available at: https://ssrana.in/ip-laws/trademarks-in-india/
- ZAK MUSCOVITCH, “Logo Trademark Registration: A Step-By-Step Guide”, Logo Com, May 3, 2022, Available at: https://logo.com/blog/how-to-tradem ark-a-logo
- First Schedule:- Trade Mark Rules 2017, Office of the Controller General of Patents, Designs & Trade Marks Department for Promotion of Industry and Internal Trade Ministry of Commerce & Industry, Government of India, Available at: https://ipindia.gov.in/form-and-fees-tm.htm
- Dharti, “Necessity / Importance of Trademark registration in India”, Ebiz Filing, January 8, 2021, Available at: https://ebizfiling.com/blog/necessity-importance-of-trademark-registration-in-india/#:~:text=Protection%20to%20your%20Brand,-A%20registered%20trademark&text=It%20protects%20your%20brand%20from,in%20whichever%20manner%20you%20want.