How to Select the Name for Trademark Registration ?
Hi there, so you want to know more about trademarks, trademark registration and their importance in business world. Trademark is one of the most important factor that identifies goodwill of a business. I am sure you already have a running business or are in the initial stages of starting a new one. Your requirements in both the cases become different.
If you are starting your business you have more flexibility in deciding your trademark, compared to when you already have an existing business having a reputation which can easily be harmed by another competitor who can misuse the trademark.
For clarification purposes, this article deals with both the cases and at times you will find that I will mention that even when you have a comparatively non-distinctive trademark it can be accepted. The simple reason is that you have already been doing the business under that trademark and have generated a goodwill. It is very important to have a distinct trademark when you apply for it to the authorities in India.
You can look at this definition of trademark, it is quite self explanatory,
"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 shape of goods, their packaging and combination of colours;...”[Sec.2(1)(zb)]
We need to add here that a trademark needs to be -
- capable of being represented graphically; and
- capable of distinguishing the goods or services of one person from those of others.
Let's take some examples to understand which trademark may be registered and which may not be. You need to keep one thing in mind. 'A trademark needs to be distinctive in character thereby distinguishing it from others'.
Register Trademark for ₹ 6,799 all inclusive
Examples of how to select a name for trademark registration
Let’s try and analyse a few examples which may or may not be accepted by Trademark authorities.
Example 1
A mark can be deemed to be deceptively similar to another mark if it so nearly resembles that it may cause confusion. Hence, mark cannot be a well-known trademark like Toyota or Sony or Nokia.
Example 2
A mark with description of goods & services may not be accepted if it does not have a distinctive element. For eg “Sarees” is a good/commodity and if one applies for a mark as ‘silk sarees’, it may not be accepted. The word needs to be accompanied by something distinctive like ‘Mahinder AZ sarees’, may be accepted easily.
Example 3
Trademarks depicting ‘quality’ of the goods or services may not be accepted. For example words ‘Good’, ‘Best’ & ‘Super’ fall under this category and may not be accepted.
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Example 4
Certain words which refer to the ‘Intended Purpose’ like ‘Rustfree’ for paint will not be accepted as this is the intended purpose of a type of paint. There could be many people supplying paints for this purpose. Hence, this does not make it distinct.
The House of Lords held, “traders should not obtain any monopoly in the use of words as trade marks to the detriment of the members of the public, who, in the future and in connection with their goods might desire to use them”.
Example 5
Name of Geographical Locations most specifically would mean the origin of the goods or services. Hence they are non-distinctive in nature. Names of places with populations lower than 5,000 in India not having high reputation will normally be acceptable prima- facie. Same becomes true for street names, city names, districts, town names.
Example 6
Trademarks that include the name of the goods or services claimed and any words recognized as indicating size or type like 'Large' , 'Medium' or 'Small', especially in the case of garments would not be allowed as they become a medium of measurement and more generic in nature.
Example 7
Trademarks that indicate the quality of goods or services may not be accepted as well. Like GOOD, BEST, HIGH TECH, CLASSIC are not register able for any goods or services
Conclusion
There are many criteria apart from the above examples that we take in the article. It is very important to understand that whenever there is a need to register a trademark, major emphasis is given to the term ‘distinctiveness’ or ability of a trademark to distinguish it from others. Courts have lead with precedence wherein generic marks have been accepted. The primary reason for this acceptance is the use of such a mark by the applicant over a period of time has made the trademark relate distinctively to that applicant.
The final judgement in acceptance of tradename relies on one thing and that is, are you able to prove that the tradename is distinctively related to you or not.
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