Trade Mark Search in India

TRADE MARK SEARCH IN INDIA

Introduction

A trade mark is generally known as a brand name which helps to identify the goods and services of a particular business house. A trade mark helps to distinguish the goods and services of one business from another. A mark includes a device, brand, heading, label, name with abbreviations, signature, shape of goods, packaging or combination of colours. Under the Trade Mark Act of 1999, the service mark of a business house can also be registered.

It is the guarantee of the quality of the goods and services provided by the business to the customers. So, it is very much essential to choose a trademark which helps to distinguish the goods and services of one business house from others and does not match with a pre-existing trademark in the record of the trademark registry. A trademark to be different from other marks should not be deceptively similar. A deceptively similar trademark is one which looks similar to a registered trademark.

 Selection of distinctive as well as legally safe trademark is a very important for initiating the business. To avoid rejection of the trade mark or to avoid litigation, the following points must be remembered regarding the trademarks:

1. The mark should be capable of being distinguishing the goods and services
2. If the trademark is a word, it should be easy to remember and pronounce.
3. It should not be descriptive

TRADE MARK SEARCH

When a business is commenced, a trade mark must be assigned to the business house to distinguish it from other business houses. A database is created by Trademark Registry of Government of India regarding the trademarks being registered or have been duly filed for obtaining registration known as “Intellectual Property India” or “IP INDIA”. This database contains all the trademark applications which are submitted to the Trademark Registry and includes registered, objected, opposed and abandoned trademarks. This database provides detailed information about trademark at various levels.

A trademark search in India is the first and the foremost step in the process of selecting a trademark for the business. It is very much impor—tant for the new business to have prior knowledge of any identical or similar marks.

If any business house has applied for the trademark and its application is in the process of registration, it can use the letters “TM”. Once the mark is registered, it can be used with an encircled “R”. This indicates that the mark has been registered and infringement of such registered trademark can lead to legal proceedings.

The trademark search in India may often appear to be very simple but to understand the legalities involved therein is very deep in nature. If there is a similar pre registered mark, the new mark is subject to refusal. The refusal of the new mark leads to waste of resources and time of the business house. It leads to diminution of the brand success.  This trademark search is free of cost and can be carried out by any individual or any expert in this field.

Thus trademark searches refer to any action taken for the purpose of determining whether a trademark is used in business or not.

The online trademark search in the trademark registry of India can be divided into three categories:

1. Word mark
2. Vienna Code
3. Phonetic

To find similar trademarks, the most used trade mark search type is that of a wordmark. A wordmark search helps to find out the trademark which has a similar word as that of the word entered. The trademark office website allows a trademark search query with the following options:-

1. START WITH- this option provides results which start with the keyword that is entered.
2. CONTAINS- this option provides result which start, end or contains the keywords. It is more comprehensive.
3. MATCH WITH- this option provides result which is an exact match to the proposed trademark

The class has to be mentioned while carrying out a trademark search. There are 45 classes of trademark registration. Class 1-34 deals with various goods and classes 35-45 covers the various nature of services.

The phonetic search shows results for similar sounding trademark words. It is a useful trademark search type as it provides with results having a different spelling but a similar sound. It is advisable to carry out a phonetic search in addition to a wordmark search for better results.

Sometimes a trademark application may contain visual elements which may make it difficult to search for similar marks. Device or figurative trademark includes marks such as stylized letter, numeral, shapes, plants, celestial bodies, living creatures etc.

A device mark can be searched with the help of Vienna Codes for different figures.

The Vienna classifications are available at the official website of WIPO (World Intellectual Property Organization). The categories of figurative elements of the marks are to be taken as reference from WIPO. The search type is selected as Vienna Code at IPIndia website when any logo or any figurative element must be searched. The code must be put in the desired space with the class number and the search result is shown.

India, being the member of the Vienna convention follows the international classification of the figurative elements in a trademark. It is only applicable to marks with visual elements such as logos. The figurative element in the trademark can be searched at the initial stage through the Vienna Codification search.

Generally, a preliminary trade mark search is carried out by an individual which is essential before the registration of the trademark. This is an informal search carried out by the individual. A preliminary trade mark search is often called the knock out search which is the initial step. The individual has no knowledge of the legal procedures and consequences. It involves the search through a trademark database at IPIndia (the government trademark search database). A preliminary trade mark search in India is carried out to show the possibilities of conflict with the identical marks. A preliminary search helps to determine the following: –

• Marks similar to the proposed mark
• Mark confusingly or deceptively similar to proposed mark
• Marks phonetically similar to the proposed mark

Trade mark search in India by individuals are beneficial for smaller companies with limited trademark reach who have small intellectual property portfolio and located in a small locality. Preliminary search determines the relevant strength of the mark in the economy. Weak marks can be altered and good ones can be retained.

To conduct a detailed trademark search in India it is often advisable to seek a professional legal opinion of the attorney or an expert in this field. A comprehensive trade mark search can only be carried out by experienced trade mark attorneys. The legal opinion of the expert is a much more formal and detailed A comprehensive trade mark search is a better choice since it is a more detailed search and the risk of rejection of the mark is low. Since the attorneys have more knowledge of the particular subject, it is advisable to carry out the trademark search by the attorney. The legal consequences can be well dealt by an attorney than any other individual. More detailed trade mark searches like that of the Vienna Code searches are better to be carried out by an attorney.

Thus, trademark search in India is an important issue for the registration of trademark and it should be conducted properly.