TRADEMARK: A MARK OF IDENTITY
At some point in our lives, seeing our old friend, we would have said ‘Hey! How could I forget you? Your soulful songs are still ringing in my ears.’ At times, we would also have thought ‘Who is he? I don’t even remember his name.’ The difference between the two situations is that a unique feature in a person sticks to our minds and we remember them longer. As in the first case, it is the person’s style of singing. A distinctive quality of a person gives them identity.
Just like how a feature determines the identity of a person, a trademark determines the popularity of a company and its products. As trade deals with buying and selling of products, trademarks dreams with protecting and improving the way products are perceived.
WHAT DOES THE TERM SIGNIFY:
Trademarks are one of the four major areas of Intellectual Property along with patents, copyrights and trade secrets. A trademark, also known as Brand Name, is the symbol, logo, sign, design, expression or physical mark which gives a unique identity to the product and the company. It should be legally registered and graphically representable. Trademarks can be a name, as in the brand of the French fashion designer Coco Chanel who named her style of garments after her. Trademarks can also be a symbol, as the McDonald’s golden arch, or a catchphrase as HumCen’s Unearthing Innovation, or even a figure as GEICO’s talking Geico.
To put it simply, there are three symbols of a trademark as ™, SM and ®.
™: It is the symbol used alongside the logo, phrase or design of the product, with no legal significance. The inclusion of this symbol states that a trademark application has been initiated and yet warns imposters and infringers not to copy their innovation.
SM: It is the Service Mark that is to be used concerning the services, and not the goods.
®: According to the Trademark Act 1999, once registration of a trademark is done, the proprietor is empowered to place the symbol ® on the brand name or logo. It is a way to show that the trademark has now been registered and that anyone can be sued by the owner if they are found to copy the original. However, placing this symbol before the completion of the registration is marked as an unlawful activity.
WHAT DOES IT DO?
Not only does trademarks help in identifying the service and products of a particular company but also distinguishes them from its competitive companies. The trademark indicates the authenticity of a reputed product recognised by the customers offered by so and so company. Most of the time the customer will blindly buy the products with the registered brand associated with it.
BRIGHT SIDE OF TRADEMARKS
The use of a trademark has been an advantage to the proprietors starting from obtaining popularity to preventing copy. Some of the major benefits are discussed below:
i) CREATION OF ASSET
Registering for a trademark is nothing but creating an asset which is an intangible one for Income Tax and accounting. In one way, a registered trademark is a possessed right that can be sold, franchised or commercially exploited.
ii) EXCLUSIVE RIGHTS FOR THE OWNER:
As per the Trademark Law, the trademark owner shall have the exclusive right of designating by the trademark the goods or services it is granted for. The owner may prohibit third persons not having his consent to use the sign which is either identical or similar to their trademark.
iii) DISTINGUISHES PRODUCT:
A trademark makes it easier for people to find it. As a product with a trademark cannot be reproduced by other companies, it is at the advantage of the company to reach people and create an image of the product. It is also important to note that a trademark attracts customers and wins their trust more easily than the product without a trademark.
iv) BUILDS TRUST:
To a certain extent, a trademark acts as a communicator of the company’s vision and characteristics. It also assures the quality of the product which is why a large number of people prefer trademarked products over non-trademarked ones. Customers usually attach the quality of the product with the trademark. Consequently, when the trademark is catchy, it not only catches the eyes of the customers but also catches their hearts and trust.
v) PREVENTION OF INFRINGEMENT:
Infringement, in other words, is a violation. It is the right of the owner to stop other companies from copying their original product which in one or the other way is a violation. His registered trademark helps him to prevent infringement. In addition to this, the owner possesses the right to sue those who use their trademarks or products without their approval.
vi) ATTRACTS JOB-SEEKERS:
Job seekers are attracted to big brands which hold a good reputation. However, focusing upon the quality of the product and registration of the trademark gives rise to an increased number of job seekers approaching the company. Accordingly, employee retention can increase if employees develop good feelings towards the brand. In other words, reputation acts as a magnet which brings in people with diverse skills. Not only does this widen the talent pool but also reduces the cost of hiring.
vii) PROTECTION ON SOCIAL MEDIA:
It is no surprise to note that the reputation of products and services are hampered by infringers through social media. With technology, anyone can easily create fake accounts and post unauthentic content about the products. At this point, having the trademark registered can help prevent such illegal activities. Many may wonder how, but only a few are aware that almost every social media platform uses tools that would delete accounts or content which displays harm to the company’s reputation. But to use such tools, the company should enter its trademark registration number. This is how the safety tool works and this is why trademark registration is essential.
DARK SIDE OF TRADEMARKS
Anything that comes to a man is neither completely a boon nor completely a bane. It has a balanced portion of the two. So here is the list of the drawbacks of trademarks.
i) HASSLING WITH PROCEDURE:
The first step towards obtaining a trademark is registered, which is unfortunately not as easy as one thinks. This time-consuming processor filling papers, novelty check and submitting them surely tests one’s patience.
ii) COST OF FILING:
The cost of filing for registration of a trademark is not much but not significant as well. It is said that the cost independence on the number and classification of the products categorised under the brand.
iii) NO ALTERATION IN CLASSES:
One of the major drawbacks is that once the application is filed with the registrar, no changes will be made in the mentioned classes of the brand.
iv) REPEATED RENEWALS:
Once a trademark is registered, its validity extends for 10 years after which it should be renewed. If it kept on due, then it might lead to the removal of the trademark. Failure to renew affects the legal position of the owner.
v) ADDITIONAL FEE:
Incase renewal is not done within the prescribed time then a proprietor is sure to lose the protection of the trademark. The proprietor is compelled to apply for restoration which is accompanied by restoration fee as well as renewal fee. This falls as a double burden.
vi) DOCUMENTATION OF PROOFS:
During every renewal, the owner is expected to show the proofs concerning the trademark. Hence it is highly required to document all the proofs from the beginning. If the owner fails to produce them, then he or she has to face the consequence of losing the trademark.
vii) WEAKEST PROTECTION:
When it comes to the protection of products, one may not solely rely on trademarks since it is the weakest form of Intellectual Property Rights. Unlike patents and copyrights, a trademark aims only at protecting the marketing of products, and not the product itself. Hence, it is advisable to go with other Intellectual Property Rights along with trademarks.
THE BOTTOM LINE
Trademarks, though in one way secure the marketing of the product, on the other way round doesn’t guarantee complete legal protection. However, it is recommended to those entrepreneurs who aim to have exclusive rights over their products.