BRAND REGISTRATION- OPENING THE DOOR AND STEPPING BEYOND NATIONAL BORDERS
More than tangible property owned by a multinational, it is the intangible Brand Name that is considered as a key asset for any business undertaking these days. Almost all enterprises whether profitable or non – profitable, small, medium or large these days focus sufficient amount of time and investment in developing their brand image. Presence of digital media transcending borders, nationalities and boundaries has made brand image as well as brand value a key ingredient of any business these days. Investing in registration of Brand can be used as a powerful tool for promoting and marketing the goods and services not just within national boundaries but beyond as well. However, establishments who are yet to develop their niche in the market, feel that brand registration and image are only a cup of tea for businesses having a stronghold in the market. But in reality, brand image and registration must form an integral part of every business strategy or business plan at nascent stage for the business to flourish, create demand and attract its consumer base.
The term brand has much wider connotation than trademark as it includes within its ambit not just the trademark but design, logo, trade dress, concept, tagline, shape, artistic work, image as well. In order to succeed in developing a good brand, one must keep in mind that it must be able to differentiate itself and goods and services from those of competitor. Apart from that it must be credible enough to win the loyalty and trust of consumer base that one intends to target through the medium of proper communication, effective quality control as well as maintenance.
Branding usually aims at building a distinctive and dynamic presence of a particular business in the market. For effective brand enforcement in India one should get the Trademark registered with help of expert legal professionals. Registering a trademark confers an exclusive right on the brand owner to prevent third parties from using the signs that distinguishes brand from similar goods or services. In India, a trademark is registered for a period of 10 years and the same can be subsequently renewed by paying requisite amount of renewal fees within a limited time period.
A trademark is usually represented by a sign, symbol, tagline, design, word, colour or a combination thereof. As per the Indian laws, there are certain requisite parameters that have to be kept in mind while developing effective brand name and registering trademark. First and foremost is that the mark must be distinctive and capable of distinguishing as well as identifying one’s goods and services from those of others. Secondly, the mark should not be deceptive in the sense that it conveys false characteristics of a product or service one intends to offer. Thirdly, Generic names, stage flags, national emblems, marks that are contrary to public morality are usually not accorded protection under the law. Fourthly, the mark that is intended for use must also not be similar to any well- known mark as well. As per the Indian laws, a well-known mark is a mark that has become well known to a section of public which uses such goods and services and use of that mark in relation to goods and services of other business would be considered as infringement as customers using the product would think that the goods and services given are in relation to well – known brand. Protection is accorded to even those well – known trademarks in India which have not been registered. Most importantly, apart from this one also must also ensure that the mark that one intends to get registered must not be prohibited in the Indian jurisdiction. Section 13 of the Trademarks Act prohibits the registration of names of chemical elements or INNs (International Non Proprietary Names). INN’s usually refer to generic name of a pharmaceutical drug and its relevance comes to fore only in the field of pharmaceutical trademarks.
Owing to these technicalities and specifics it would be best if expert legal opinion is sought at pre filing stage. Legal practitioners equipped in this field conduct relevant search under the relevant class of goods and services thereby ruling out possibility of objections to registration. An indispensable requirement at pre filing stage is finding out trademark classification of goods and services under which trademark needs to be filed. The universal standard system of classification is NICE classification which was established under NICE Agreement in 1957.
Thereafter, once the mark is finalised, relevant documents can be prepared and the mark can be registered with the Indian Trade Marks Registry. After examination, the mark is published for a period of 4 months during which any third – party objections can be entertained by the Registry and in case there is no objection, opposition the mark is registered for use within 6-8 months of filing.
In case, Indian Nationals want to protect their brand in many countries, we can utilise a cost effective and an alternative route of registering our trademark under Madrid Protocol. Under Madrid System of Filing, based on Trademark Application filed in India, one can file an international application for seeking protection in many countries who are a part of Madrid Union. This application shall be thereafter transmitted to WIPO for examination, registration and publication. This centralised system of filing relieves us from filing separate applications for trademark registration in many countries as well as complicated laws and procedures specific to each country. The fee too has/ to be remitted centrally in a single currency i.e. Swiss franc.
In order to boost IP industry, the Government of India has been playing an active role by encouraging start-ups as well as commercial sector to invest in IP. For instance a National IPR policy has been put in place where many steps are being taken by Government agencies as well as other sectors to boost awareness about Intellectual Property Rights, Pendency in Trademark Filings has been brought down, fees for filing trademarks has been reduced for start-ups, individuals and small scale companies, e-filing, video conferencing, filing sound marks in MP3 format and many more such steps have made Branding in itself an accessible and a comprehensive field.
Make in India is one such initiative which covers 25 different sectors of the Indian Economy, and was launched by Government of India on 25th September 2014 to encourage companies to manufacture their products in India and to motivate with dedicated investments into manufacturing.
Make in India was launched with 3 main objectives:
(a) To increase the manufacturing sector’s growth rate to 12-14% per annum in order to increase the sector’s share in the economy.
(b) To create 100 million additional manufacturing jobs in the economy by 2022.
(c) To ensure that the manufacturing sector’s contribution to GDP is increased to 25% by 2022 which was later revised to 2025.
Use of “Make in India” Logo is now allowed without any permission for the following categories:-
(i) All establishments, offices and officers of the DIPP, Government of India.
(ii) All Central Government Ministries/Departments and Departments of State Governments/UT Administrations for use in programmes directly organized by them.
(iii) The Use of “Make in India” Logo by Indian Embassies/Missions abroad will be permissible for events, brochures, publicity material and advertisements that promote the “Make in India” initiative and are sponsored/supported by the Embassies/Mission.
For the following events, use of the “Make in India” logo may be allowed with prior approval of the DIPP, Government of India:-
(i) All Central Government Ministries/Departments/PSUs and Departments of State Governments/UT Administrations for programmes conducted in association with industry bodies like CII/FICCI/ASSOCHAM/PHDCCI etc.
(ii) All events for which financial support is extended by the DIPP, Government of India.
(iii) For a specified period, for events organized by private bodies that promote the “Make in India” initiative.
Private entities can now use the logo “Make In India” by applying it 30 days in advance in the prescribed form to the DIPP.
However, departments of State Government do not require any prior permission to use the “Make in India” logo from DIPP. Though, use of the word “India” is prohibited under Section 9 (1) (b) of the Trade Marks Act, 1999 which clearly states that mark which designates geographical origin which in above case is “India” cannot be registered but the same can be registered with subject to certain restrictions when no one shall claim exclusive right on the word “India”.
An array of widely used marks are: –
Make in India with Application no. 2829230 is a registered mark and owned by Secretary, Department of Industrial Policy and Promotion, Ministry of Commerce and Industry
India India with Application No. 1233187 is a registered mark owned by Inter Capital resources reserves and services
India Can India Will with Application No.1806012 is a registered mark owned by HT Media Limited with its Renewal being overdue
With appropriate legal advice and support of expert professionals having command in this field, brand registration can certainly be a winning situation for any one whether a small scale business, start up or an individual with a potential for opening the doors for the common man beyond national borders in this increasingly changing dynamics of world economy where globalization through digitization are becoming hallmarks of world trade.