Dissension over trademark rights and business name in India
Recently MCA has adopted the practice of not registering company names which are similar to any registered trademark.Archi Bhatia
Starting a business is a tricky endeavour it involves many tasks to ensure profitability and assure protection of its assets. The common misconception among the business owner is that registration of company business name with MCA also secures them trademark protection.
This belief is incorrect
Before you get your business started and running, it is recommended to register your company under government body as a company or an LLP. The company secures all possible legal rights for the company.
Then is it possible that brand name and trademark of the company is the same thing?
Trade name or brand name is the name which the company uses to connect with the public. A trademark is a word, phrase, logo or any symbol which will distinguish between the services rendered from one company and another. Trademark provides an exclusive right to the mark registered.
Any company whether small or large if has a registered trade name for the company which has an impressive quality of becoming a brand should register it as a trademark.
Company name and Brand name can be different. In simple term, there is a difference between company and brand. The company represents an Organisation that manufactures products and services and is separate legal identity whereas brand name is the identity of the company which it represents in the market.
The basic things that should be kept in mind while registering one’s company name as a trademark are:
• That if there is the problem in the image of the product, it is likely to damage the corporate image.
• If the company has many products which it is producing, then it is recommended to use a different brand name.
• Search the Trademark name in the I.P India or QuickCompany website. Quickcompany offers free trademark search tool which will provide you with a place to search the name available.
• You should also see whether domain name for your registered mark is available or not if the company aims to expand its business online
This is considered to be a prudent approach while registering a mark even if the mark is registered by an individual and not by the company.
One of the primary aims of company registration is to attain the status of legal entity whereas trademark registration is done with an aim to achieve recognition.
In India brand name is protected from both the inception of the business and from the use of the name by the company in the market. Although in the case of company registration it is essential that the company registers itself with MCA and receives a registration certificate.
Conflicts over company and trademark registration
Trademark infringement and unfair competition lawsuits mainly involve brand name imitation, an occurrence where the infringer registers or uses the name of the trademark proprietor or owner without prior permission from the owner.
For company name registration there are many formalities which are required to be fulfilled by the director of the company. MCA has now made the regulation that no company name can be registered which is confusingly similar or identical to a trademark which has been registered
A trademark is a mark or logo used as a brand indicator, which intimates the consumer about the source of goods and services. While providing the judgment, the basic information which the judge requires is that whether the confusion is regarding the origin of the product or service.
The court considers the following factors while determining whether the business name is likely to confuse or not.
1. The strength of the mark
2. How common is the mark
3. The similarity in the services and the trade dress of the services outlet
4. Platforms where the parties advertise
5. Proof of confusion among the consumers
6. The intent of the party using the similar mark
After deciding on these factors, the court can decide whether the mark weighed in favour of the proprietor or the said infringer in the case.
Recognizing and providing appropriate protection to these companies provide them with a platform to establish their roots and connections in the market.
Having your company name registered as a trademark is recommended by every trademark attorney as it provides you with a power base to establish your company which has competition companies in the similar or identical consumer
An earlier established or registered company name or business name can be used to prevent the registration of an identical or confusingly similar trademark.
This restriction upon registration of brand name can be imposed if these two conditions are fulfilled.
• The activities taken up by the earlier registered company are similar to activities undertaken by the company aiming to register the brand name or the company name.
• When the company is at the risk of association or dilution of its reputation is associated with the relatively new company.
The mere registration of company name does not establish rights for the company they are required show use while imposing objection. The same principles are adopted when a trademark is registered, and a similar or identical name is applied for company registration.
It is also recommended to use similar criteria for the registration of domain names and trademark business and company names.