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Things you should know before choosing your trademark-Part 1

Trademark registration is not so difficult task but choosing a trademark is. While choosing the Brand we are very cautious about name, its meaning, colors and its communication with your consumers. But before selecting your trademark you should check for the chances of its registration. Yes, there are some mark which are not registrable, mean you will not get registration.

The Trademark Act 1999, has clearly enumerates the condition and list of all those trademark which are not registrable.

The First condition is that, the trademark should be distinctive in nature (Sec. 9(1) (a) which means that it should be any word which is very commonly used by the people. E.g. – Star, shri/shree, bistro, common surnames, common names, Ganga. All these mark are very commonly used by the people at large and it’s become difficult to distinguish goods and services of one person from the others and you cannot have monopoly on the same.

Secondly and the most important is that your trademark should not contain any of words and indications which either way give clear idea or communicate your products and services, its  characteristic, quality directly.

You should avoid not choosing-

Jal Dhara for packaged water,

Agni for fire extinguishers,

Milky man for dairy products,

Farm fresh for fruits and vegetables,

Premium, best choice etc.

as they are directly conveying to your customers about your product/services and quality. The Law defines those words as a Descriptive marks, which is an absolute ground for refusal of your trademark application for registration (Section 9 (1) (b).

The trademark should be coined and not descriptive e.g. Apple computers; Lotus software, vicco, ASUS.

I know what will be your question after reading this.

Apple is not distinctive then how it is good trademark?

Yes, you are right apple is not distinctive but is also not descriptive if we use the trademark APPLE for the computers and Mobile phones. Apple has no connection with mobiles and computer.

But there are exception to the distinctive and descriptive character of trademark that they may be registered if they have acquired a distinctive character as a result of its use or if it is a well-known trademark. A descriptive mark may be granted registration if it has acquired a secondary meaning which identifies it with a particular product or as being from a particular source. In this regard, the various factors that are taken into consideration to determine if a particular mark has acquired distinctiveness include, the length of use, volume of goods marketed, extent of service provided, use of an advertising slogan, use in combination of other marks, advertising expenditure, evidence of trade and consumer surveys.

Thirdly Moreover there are some other words as well which you cannot trademark, something which is very common to a trade e.g. Ayurvedic, thermosteel, any obscene word, anything which hurts the religious susceptibilities, national flag, emblem etc.

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