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Trademark

Trademark is essentially another word for brand or brand name. A trademark can be any name, word, symbol, slogan, or device that serves to both identify and distinguish a business or product from others in the market. It has a significant value and trust associated with the trademark which compels people to purchase a product without thinking about it twice. This blog aims to clear your doubts on ‘How to transfer Trademark to a 3rd Party?’.

The Trademark Act, 1999 provides the procedure for the transfer of trademarks. The proprietor of the trademark has the power to assign his trademark to another in exchange for some consideration. Such assignment can be made with or without the element of goodwill of the trademark.

Trademarks like any asset can be transferred from one owner to another. The transfer could be temporary through licensing or permanent through an assignment. Assignment of trademarks is a process in which the owner of the trademark transfers the ownership of the mark either with or without the goodwill of the business. In other words, it is transferring of proprietary rights in the property of the proprietor.

A request has to be made on Form TM-16 for an unregistered trademark to be assigned or transferred with or without the goodwill of the business concerned. A registered trade mark shall be assignable and transmissible, whether with or without the goodwill of the business concerned and in respect either of all the goods or services in respect of which the trade mark is registered or of some only of those goods or services. 

The assignment of trademark is mainly based upon the contract entered into by the assignee and the owner of the trademark by developing any terms and conditions as they like. Section 40 of the Trademark Act, 1999 provides certain limitations to avoid two assignees from clashing with each other by selling under the same mark. The Act limits the use of the trademark by multiple people in the same area.

As per Section 40 of The Trademark Act, 1999, a trade mark shall not be assignable or transmissible in a case in which as a result of the assignment or transmission there would in the circumstances subsist, whether under this Act or any other law, exclusive rights in more than one of the persons concerned to the use, in relation to-

(a)     Same goods or services;

(b)     Same description of goods or services;

(c)     Goods or services or description of goods or services which are associated with each other.

of trademarks nearly resembling each other or of identical trade mark, if having regard to the similarity of the goods and services and to the similarity of the trade marks, the use of the trade marks in exercise of those rights would be likely to deceive or cause confusion.

Following shall be kept in mind while drafting contract for transfer/assignment of trademark:

  • It is important to assign the territorial extent of the assignment clearly;
  • The consideration should be clearly mentioned in the agreement. The stamp duty has to be calculated on the basis of the consideration;
  • The effective date of the assignment must be clearly mentioned;
  • It is important to mention if the assignment is along with the goodwill or not;
  • Any restrictions, if any must be clearly stated in the agreement.

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Business Registration, LLP, Partnership Firm, Start up Lessons, Trademark
Every business entity needs to be given some name and the functioning of the business is carried out in that name only. In the case of a company which enjoys the status of the separate legal entity, choosing business name in India is a must. Name approval from the Registrar of Companies is pre-requisite condition before incorporation of the company.

Procedure for Business Name approval in India

Application to concerned Registrar of Companies to ascertain the availability of name in eForm-INC1 need to be made. Maximum 6 suitable business or company names can be submitted in order of preference and name must indicate main objects of the company.

While choosing business name in India, make note of following:

  • The proposed business names must not be similar or resemble the name of any other already registered company, or
  • Proposed business name should not violate the provisions of emblems and names (Prevention of Improper Use Act, 1950), or
  • Proposed business or company name(s) should not constitute an offense under any law.
  • Last word Limited need to be used in the case of a public limited Company, or Private Limited, in the case of a private limited Company and LLP needs to be used for Limited liability Partnerships.
Along with government fee and complete form, the digital signature of the applicant proposing the company needs to be attached. For filling this form Digital Signature of one of the Promoters is mandatory.

The details need to be provided in eForm INC1 are:-
  • Authorized capital for the proposed company
  • Main objectives of the proposed company
  • State (location) of the proposed company
  • Personal details of all Promoter?s
  • Copy of trademark application/certificate (if applicable)
  • In case, there is a logo associated with trademark then image of logo
  • Balance sheet (if applicable) and Income tax returns for last 2 years

If the name is approved by Registrar of Companies, letter of acceptance is issued for the proposed name. If proposed name(s) are not available, fresh names can be applied through the same application.


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The Government on March 6, 2017 notified a new set of trademark rules which have replaced the old rules constituted way back in the year 2002. The main idea behind the change is to help expedite the approval process and increase filings, both of which have shown positive trends over the past few months. While the examination time for an application has been brought down from 13 months to just 1 month in January 2017, official figures suggest that filings have jumped 35 per cent in 2015-16 against the previous year. Listing the top 4 changes in the new rule that you should know:
  1. Ease of doing business: One of the most important things is that the total number of forms that an applicant had to fill out has been reduced from a monumental 74 to a quite reasonable 8.

  1. Slashing of cost: The new rules have hiked fee for Trademark application to Rs. 9,000 but application fee for individuals, start-ups and small enterprises has been kept to Rs. 4,500 only (Government fee)

  1. Clarity in the approval process: To make a business doing easier, the method to determinate well-known trademarks has been clarified for the very first time. Provisions relating to the expedited processing of an application for registration of trademark have been extended up to the registration stage. Until now, they were only till the examination stage.

  1. Quick disposal: Concept of video conferencing has been introduced in the new rule and the number of adjournments in opposition proceedings has been limited to two by each party, these measures are surely going to help in disposal of cases on time.


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IP, Trademark
In order to encourage aspiring entrepreneurs and also boost innovation, India Patent Office has issued guidelines for startups with respect to filling and processing of applications for patent, designs and trademarks.


As per the guidelinesa startup willing to file a patent application for an invention will have to select a facilitator who would help in preparing the request and also assess the patentability of the invention as per acts and rules, the Controller General Patents, Designs and Trade Marks said in a public notice. If the startup is unable to select a facilitator, it should contact the head office of the respective Patent Office as per jurisdiction, who shall provide 3 names of the facilitator and the startup will finalize the name, the notice added.


The fees for filing the patent will be taken care by the Startup. The facilitator needs to take care of further steps in patent application and also needs to reply to any query from patent office. A list of 280 facilitators has been released by the office. For filing and processing applications for designs, the patent facilitators would provide their services. In the plan it has been mentioned that all the expenses of facilitation for filing patent, trademark or design, will be taken care of by the government. The move is aimed at promoting awareness and adoption of intellectual property rights by startups and facilitate them in protecting and commercialising those rights.  

It is a summarization of an article in Your Story. For more details, visit http://yourstory.com/2016/06/startups-receive-guidelines-ipo/



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IP, Trademark
The number of startup, in every corner of the world, is increasing every second. This competition makes sure that each firm establishes unique image in the minds of the consumer, to be in the market. While the new-age ventures focus on growth and profitability, there is also a need to protect the intellectual property assets owned by the entity. With rising competition, organizations are developing innovative strategies to develop more business and attract investments from numerous venture capitalists and private equity firms. A well defined intellectual property strategy should be in place to protect the intellectual property from potential infringers in the marketplace.


Some of the steps that startups should embrace to protect their intellectual property:

  1. Startups should get their ideas/solutions patented with PTO so that other cannot use that invention. As patents are country-specific, first you should apply in domestic market and then, with strategy, in international market.
  2. Time should be taken to develop intellectual property and educate yourself with the basics of it property including trademarks, designs, patents, and trade secrets.
  3. Minimize the cost and work by outsourcing patent-related task to attorney who specializes in intellectual property and will assist in filing patent application in single/multiple jurisdictions.
  4. You should identify infringers and earn through licensing.
  5. You should draft non disclosure agreement while revealing it to other.
  6. Ensure all agreements are in place to avoid leak/breaches of information.
  7. You should apply for international patent if you have competitors abroad.
  8. Conduct a Freedom-to-operate (FTO) search in order to launch a particular product and service in other country.
  9. You should perform patent search to perform to invalidate the patent in the marketplace.
  10. The company should conduct landscape search in order to locate potential competitors and their activities. They are crucial to determine technological advancements for In-licensing and Out-licensing in the respective filed of technology.
  11. Think about the future and devise patent strategy in line with business goals and the need to be legally protected.
It is a summarization of an article written by Amit Aggarwal. For more information, visit https://www.entrepreneur.com/article/252236



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What are the Rights granted by Patent?


If the grant of the patent is for a product, then the patentee has a right to prevent others from making, using, offering for sale, selling or importing the patented product in India. If the patent is for a process, then the patentee has the right to prevent others from using the process, using the product directly obtained by the process, offering for sale, selling or importing the product in India directly obtained by the process. Before filing an application for grant of patent in India, it is important to note:  


What is not Patentable in India?


Invention is not patentable in India when the Invention is any one of the following
  • Frivolous
  • Obvious
  • Contrary to well-established natural laws
  • Contrary to law
  • Immoral
  • Injurious to public health
  • A mere discovery of a scientific principle
  • The formulation of an abstract theory
  • A mere discovery of any new property or new use for a known substance or process, machine or apparatus,
  • A substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance
  • A mere arrangement or rearrangement or duplication of known devices
  • A method of agriculture or horticulture
  • Inventions relating to atomic energy, are not patentable in India.

Infringement of Patent  

Patent infringement proceedings can only be initiated after the grant of a patent in India but may include a claim retrospectively from the date of publication of the application for grant of the patent. Infringement of a patent consists of the unauthorized making, importing, using, offering for sale or selling any patented invention within the India. Under the (Indian) Patents Act, 1970 only a civil action can be initiated in a Court of Law. Further, a suit for infringement can be defended on various grounds including the grounds on which a patent cannot be granted in India and based on such defense, revocation of Patent can also be claimed.

 

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Trademark, Trademark

Copyright is given to creative artists for their creations. Copyright is done to protect original work of authorship including books, articles, photographs and other creative works. An idea itself cannot be copyrighted. A work must be in a fixed, tangible form to be protected. It gives right by providing legal evidence and public notice of ownership. It lasts the author’s lifetime, plus an additional 70 years. Read on to understand the Copyright Registration Process in India.  


Who typically seeks Copyright?

  • Authors
  • Artists
  • Choreographers
  • Architects
  • Other creative professionals.

 The Process for Copyright Registration

First you need to apply for copyright registration by filing the form. Then registration application is allotted to a Copyright officer, who decides whether the application is accepted or rejected after examining it. After examination is done you will need to wait for mandatory 30days for any objection to be filed against your claim. If ?no objection is filed within 30days then registration is accepted. But if there is an objection then a hearing is called before the hearing office where the applicant and the objecting party gives evidence for their stand. Based on the evidence and hearing the officer decides to accept or reject the Copyright registration. If not opposed then the Copyright registration certificate will be given.  

Documents Required for Trademark Registration

-Date of using the Logo/Tagline (Any supporting document for the same)
-Power of Attorney signed by the applicant
-Softcopy of the Logo/Tagline



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Trademark, Uncategorized
A Trademark is a name, logo, tagline, colors that identify a product or service. Business owners are given rights on their trademarks. Trademark is essential as it protects any word, name, slogan, design, or image that identifies a business or brand and distinguishes it from others. It also gives the right to the mark and allows the holder to file a lawsuit against infringers. It has an unlimited term but must be renewed after every 10 years. This article will help you understand Why and how to Register Trademark in India.

Process for Trademark registration:

Before you start registration of your trademark, you need to conduct a trademark search in which you need to search the trademark database to check whether there is any other similar or identical trademark. After the completion of trademark search, Trademark registration can be filed with the fees in the Trademark Registrar. Then the registration application is allotted to a Trademark officer, who decides whether the application is accepted or rejected. If the trademark registration application is rejected, the applicant can appear before the officer to address the problem occurred at a given date and time. When the application is accepted it is published in the trademark journal with other trademark registrations for the public to see and if needed then oppose. If there is no objection within 90days then registration is accepted. But if there is an objection then a hearing is called before the Trademark hearing office where the applicant and the objecting party gives evidence for their stand. Based on the evidence and hearing the officer decides to accept or reject the Trademark registration. If not opposed then the Trademark registration certificate will be given.  


Documents Required for Trademark Registration
  • Date of using the Logo/Tagline (Any supporting document for the same)
  • Power of Attorney signed by the applicant
  • Softcopy of the Logo/Tagline


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