Trademarks and service marks are words, names, symbols, or devices used by manufacturers of goods and providers of services to identify their goods and services, and to distinguish their goods and services from goods manufactured and sold by others. A trade mark must be distinctive for the goods and services provided. In other words it can be recognized as a sign that differentiates your goods or service as different from someone else’s.

Most businesses are aware of their brand or branding and rightly see it as their corporate image and know it is of vital importance to their business, but often do not realize how vulnerable it is at the same time. In order to protect it properly, it should be registered as their trade

A Trademark generally refers to a “brand” or “logo”.Trademark registration can also be obtained for a business name, distinctive catch phrases, taglines or captions.
Properly used and promoted, a Trademark may become the most valuable asset of a business. Trademarks such as Coca Cola, HP, Canon, Nike and Adidas serve as an indication of origin of the goods as well as an indication of quality.
I
t is also essential to obtain trademark registration for the business name/trade name under the Trademarks Act. Registration of a company or business name under the Companies Act does not in itself give protection against others who might commence using identical or similar marks.

Use of TM, SM and ® symbols
'TM' stands for Trademark and 'SM' stands for Service mark. The use of TM and SM symbols notifies the public that the company is claiming exclusive ownership of the trademark and can generally be used by one who has filed a trademark application.
The ® symbol, can be used only once the trademark is registered and the registration certificate is issued. Also, you may use the registration symbol only in connection with the goods and/or services in respect of which the trademark is registered.

#The registration process is the same for both trademarks and service marks.

Selecting a good trademark
A trademark must be chosen carefully. If you are launching a product and adopting a new trademark, please bear in mind that the scope of legal protection you would obtain depends on the type of trademark chosen.

The most common mistake is to choose a word that is descriptive of the goods or services. People do this in the belief that the consumer will know straight away what the product is or the service rendered. The same result can easily be obtained by combining a distinctive and fanciful trademark with a word which indicates the goods or services. E.g. Kodak film.

Descriptive trademarks are difficult to register and enforce. Although it may be easier to market such products at inception, such trademarks are offered the least amount of protection and therefore, in the long term, it would be difficult to stop your competitors from using the same or similar trademarks.
A better strategy would be to adopt a coined word, which has no reference to the goods/services upon which it is used. E.g. Canon
Another option is to adopt an arbitrary word, which has no relevance to the goods/services upon which it is used. E.g. Apple computers; Lotus software
The more distinctive a trademark is, the broader will be the available scope of protection.

GUIDELINES TO BE FOLLOWED:
• AVOID Superlative or Laudatory words E.g. Premium, Gold, Deluxe
• AVOID Descriptive words E.g. Coffee shop for coffee bars; Cooler for Refrigerators
• AVOID trademarks Confusing Similar to existing trademarks
• AVOID words which have direct reference to the Character or Quality of the product/service. E.g. Best Choice, Easy Cook, Super
• AVOID Common Personal Names or surnames. Such names are registrable only if it has acquired distinctiveness through advertisements and long use

Well known geographical names such as SWISS chocolates or U.S.A. pizza are also not registrable.
There are also other factors to be considered in the adoption of trademarks, which is beyond the scope of this text.


Trademark Registration Process
Upon filing of the application, the registry will issue us with an official receipt with the filing date and number allotted to the application. The application is then formally examined by the Indian Trade Marks Office, as to its inherent registrability and/or any similarity with existing marks. If an objection to registration is raised, an official examination report will issue. To overcome the objection, it is necessary to file a written response or presenting evidence of acquired distinctiveness and in most cases, an interview/hearing with the examiner is posted. The Registrar may require the applicant to file an affidavit testifying to such user with exhibits showing the mark as used.
If, following examination, the trade mark application is considered allowable, a Letter of Acceptance (TLA order) will issue, after which the trademark will be published in the Trade Marks Journal. If there are no oppositions within 4 months from the date of advertisement in the Trade Marks Journal, then the trademark registration certificate will issue.

Trademark Registration is a tedious process and it takes around 18-24 months to obtain registration in a straight-forward case, without any objections or oppositions. However, once the trademark application is filed, an application number is allotted immediately and the priority starts from the date of application.
Once the trademark is registered, it is valid for a period of 10 years from the date of application. The registration can then be renewed indefinitely as long as the renewal fees are paid every 10 years.

International Trademark Registration
Trademark registration is territorial in nature. Separate applications need to be filed in each country where you wish to register your trademark.
If you plan to sell and market internationally, it is essential to register your trademarks in those countries. Usually, the party who first registers a mark owns it. Therefore, it is significant to register your trademarks in each country your company considers to be a potential and key market. A national trademark registration stops at the border and does not afford rights to the owner of the trademark outside the country in which it is registered.

Most companies expanding into other countries often realize the value of registering their trademarks abroad once it is too late, that is, once they are faced with counterfeiters/imitators or once they are accused of infringing the rights of others. The risks of doing so are very high and the consequences may be extremely costly and detrimental to a company’s entire business and export strategy. It can be a severe financial liability to invest in a brand, promote it in the local market, then find that the brand cannot be registered and used internationally and have to finally abandon that investment.

1. Registering a trademark abroad renders the company an exclusive right to commercialize its products in those markets.
2. This not only provides a solid foundation to stop counterfeiters but also ensures that the company enjoys exclusive rights over what may be one of its most valuable business assets.
3. Registering a trademark abroad also provides the opportunity to license the trademark to others or may be the basis for a company’s franchising or merchandising strategy.

Thus, the benefits of international registration and protection of one's trademark clearly outweigh the costs of such registration.
International Application under Madrid Protocol

India has joined the Madrid protocol with effect from 8th July 2013. The Madrid system for the international registration of trademarks provides one single and cost-effective procedure for the registration of a mark in several territories.

At present, there are 91 countries which are members of the Madrid protocol. The following link shows the members of the Madrid system:

http://www.wipo.int/export/sites/www/treaties/en/documents/pdf/madrid_marks.pdf

In order to file an international application under the Madrid protocol, there should be a corresponding trademark application filed in India.
In a single international application under the Madrid protocol, several countries may be designated which are members of this system. The fees will depend based on the number of classes and countries designated.

The Fee calculation
The fees can be calculated using the online tool by choosing Office of origin as India, selecting the number of classes and specifying whether the mark is in colour:

http://www.wipo.int/madrid/en/fees/calculator.jsp

In addition, a handling fee of Rs. 2,000/- is payable to the Indian Trade Mark Registry.

Upon filing the application, the mark is examined by each designated member country where registration is sought and then proceeds to registration.
An international registration under Madrid protocol is however dependent on the corresponding Indian application for a period of five years from the date of international application.

If you wish to obtain registration in a country which is not a member of the Madrid protocol, separate national trademark application has to be filed directly in the respective country.

Advantages of filing an International Application under Madrid protocol

1. Lower costs compared to individual foreign filings
2. Managing renewals, change in address, change in ownership is easier and more cost-effective
3. Additional countries may be designated at a later stage