In simple English, a trademark is the right of exclusivity to the brand behind your product or services. It is the name / logo by which consumers identify your products or services in the market. Under law, your trademark can be protected (that is stop others from using your brand name or logo and selling their products as if they were made by you) or misuse by having it registered with the Registrar of Trademarks under the Trademarks Act, 1999. Even if your logo/name is not registered you can still stop others from using it under common law (law of passing off)
Over time, for any customer facing brand, the trademark of the business is the most important intellectual property. A business eventually becomes so closely associated and intertwined with the trademark that they become inseparable. Can you imagine a McDonald’s store without the large yellow ‘M’? The goodwill and value of the brand are entirely captured in that trademark which the brand gets.
What rights does a trademark user get?
As stated above, to protect this branding, it is essential to register your trademark and once a trademark is registered it gives the registered user the right to sue anyone else and/or obtain an injunction against anyone who uses the trademarked name/ logo in a way which is deceptively similar to that of the registered user.
For example, if you started a store called “MacDonald”, it would certainly be deceptively similar to the real thing. Once a trademark is registered, it is valid for 10 years from the date of registration. The same can be renewed subsequently every 10 years.
Coming to the question at hand:
Another question that is commonly asked by entrepreneurs is whether if their logo contains their brand name, they should register as a single trademark or two separate trademarks? For example, the logo of ‘Coca-Cola’ contains the name Coca Cola as well. As does IBM’s logo. And GE’s logo. So if your logo contains your name as well, it is best to register the logo as a “logo composite mark” where you get protection for your name and logo together in one application, rather than through two different applications.
Remember, that the ideal choice is to have two separate applications, one for your name and one for your logo. But as entrepreneurs, when cost is a major factor, this is the next best option. If you are designing a logo for your brand, keep this in mind to save some precious rupees.
Some other considerations:
There are some of the important considerations to keep in mind prior to registering a trademark, such as what can or cannot be registered and conditions to be fulfilled for registration of a trademark. Whilst a detailed commentary of these cannot be achieved through this article, it is important for entrepreneurs to understand that in essence a trademark is a unique representation of their brand and logo, it should be something which is not already in public domain.
There are public policy concerns too, for instance, one cannot register as a trademark a logo or a name of something which is used in common parlance, for instance a company cannot register an apple logo and the name for a business which produces apples as it will be against the interests of public policy. But as we all know, this can be done for a manufacturer of computers. Basically, the Government does not want you to prevent other apple makers from using the name “Apple”, but doesn’t really mind if a Computer maker uses the name.
If you are considering branding your products and services in a unique way to distinguish yourself from other players in the market, it is time you considered registering your trademark. Registration of trademarks in India has become a relatively easy affair with the launch of e-government initiatives thereby making it possible for you to apply online by yourself or through a registered agent or a lawyer.