Wednesday, October 28, 2015

A mark can be protected even before filing an application. As soon as you use your mark anywhere (such as on a diskette), put the “tm”, or in the case of services, the “sm” insignia immediately after your mark. You can find examples of this almost anywhere, such as on the cover of this magazine. By using the “tm” or “sm”, you put the world on notice that you are using this mark in your trade, and that unauthorized use of this mark can lead to infringement liability.
If you have a mark, it is probably time to think about registering it as soon as possible. Registering a trademark is not a very cumbersome task. Usually, just filing a trademark application is all that is required. The application process consists of a few steps. Filling out the application is fairly easy, but it is very important to specify, as accurately as possible, the nature of the goods or services. Since the Trademark Registry will use this description in determining the extent of your mark’s protection, as well as what class or classes the mark will be placed in, it is necessary to describe your goods or services definitively, since the description can not be added to after it’s submitted. The failure to accurately describe your goods or services will limit the protection the Trademark Registry affords you.
In determining what class your program should belong in, you may choose from the list of classes, or you may let the Trademark Registry choose for you (which would probably be easier). Another consideration is the fee. The fee is Rs.3,500/- per class, so you should be careful how many classes you choose to seek protection under. You must include at least Rs.3,500/- with the application, and if the Trademark Registry determines that your work should be included in more than one class, they will inform you and give you the option of paying the additional fee for the other classes. Finally, you will need to send samples of the mark to the Trademark Registry, which will be used as proof for your mark.
After you have submitted the application, it could take over a year before the Trademark Registry approves your trademark. When your application is received, the Trademark Registry will first look to see if someone else is using your mark in the same class in which your program will be classified. Since fees are non refundable, it might be a wise investment to have a trademark search done first, before spending the additional time and money trying to register your mark, only to find out that it is already being used. Next, the Trademark Registry will publish your application in their gazette, which allows anyone to file a claim against your mark. Whether there is a claim against your mark will determine the length of the registration period.
What do you do if your not ready to sell your program even though you have a name for it? The trademark laws will still allow you to file an application based on an intent to use your mark later. The application and fees are basically the same, however there is no need to submit the examples until your ready to actually put your program on the market. The process at the Trademark Registry is also the same, but instead of getting a certificate of registration, you will receive a notice which allows you six months to use the mark in commerce, or file for an extension of time. Once you have been given your trademark registration, you may then replace the “tm” or “sm” with the “®”. Finally, trademarks are renewable indefinitely in ten year increments if the owner certifies that the mark is still being used in commerce, or at least it has not been abandoned. During the first ten year period, the owner will have to file an affidavit showing his or her continued use of the mark. Of course, there is a fee for this as well.
Daniel & Boaz
Chennai Trademark Law firm
Trademark registration for Tamilnadu, Andhra Pradesh, Kerala, Karnataka, Pondicherry & Lakshadeep is done in the Chennai Trade Mark Registry.
TEL:- 9840787702
Email: trademarkchennai@yahoo.in

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