A trade mark is any mark which can be graphically represented affixed to any goods or services for the purpose of identifying, distinguishing and indicating the source of origin of the goods/services of a trader or manufacturer as the case may be. This mark may be a name, symbol, or a combination of thereof. A trademark once applied and registered, exists in perpetuity subject to periodic renewal and use of the mark in respect of the goods or services for which it is registered and used.
Q2:
What is a service mark?
A2:
A service mark, just like a trade mark is a mark used or intended to be used to identify, distinguish or indicate the source of origin in case of services.
e.g. Restaurants & hotels, real estate, building & construction, financial affairs, etc.
No, it is not necessary that the trade mark be registered with the trade marks registry. However registration has its advantages such as: a notice to the general public of the ownership in respect of the mark, a presumption of ownership and the exclusive right to use the mark in respect of the goods and services for which it is registered across India. It is pertinent to note that for a mark registered in India, the rights so guaranteed are enforceable in India only. The applicant is required to secure a separate registrations in respect of the trade mark in other countries where he uses or intends to use the mark in respect of his goods or services.
When is it proper to use the letter R enclosed within a circle -- ® -- with the mark?
A4:
The above symbol can be used only once the mark is registered with the Trade Marks Registry and registration certificate is received by the applicant. Where an application is pending before the registry, it is not proper or legal to use the above mentioned mark. Pending registration, one can use the words TM within a circle indicating pending registration of a trade mark or the words SM within a circle indicating pending registration or a service mark.
Only the proprietor of the business or the owner of the trading corporate entity may file an application for the registration of a trade mark. An application filed by a person who is not the owner of the mark will be declared void. Generally, the person who uses or controls the use of the mark, and controls the nature and quality of the goods to which it is affixed, or the services for which it is used, is the owner of the mark.
Can a trademark be transferred from one person to another?
A6:
Yes. A registered mark, or a mark for which an application to register has been filed is assignable. This means that the mark can be sold to another person/entity. An assignment agreement executed, and notarized by both parties is required to be filed with the trade marks registry to effect such a change of ownership in respect of the mark. A trade mark similarly may also be licensed to another following the same procedure as that of assignment of a trade marks.
