The Power of Trademarks

What is a Trademark?

What if someone starts using your business name? Can you stop him from using your logo or product name? Can you claim compensation for the loss to your business because of a misuse of your brand name? The good news is you can. The law of TRADEMARKS in India protects business owners, who register their names under the Trademarks Act, 1999, against possible misuse of their trademarks by third parties. No matter, which business you are into, you must protect your company name, product name, logos and other unique identifying features that differentiate your business from that of your competitors.

What is a trademark, you will ask? Most of you may not be familiar with the term ‘trademark’, but I can guarantee you’re familiar with the actual trademarks of different companies, like Nirma’s dancing girl or the red Lifebuoy sign on their soaps.

A trademark is simply a name or a logo used to distinguish the goods or services offered by one company, from those offered by another. Take for example, Coca Cola and Pepsi. Just by looking at the bottle it would be impossible to tell that the bottle was filled with Coca Cola and not Pepsi, had it not been for the distinctive RED ‘Coca Cola’ sign. A trademark is thus the name or a symbol associated with a particular product through which the consumer identifies the source of the product.

Why are Trademarks so important?

It is particularly important to protect your logo or brand name when consumers start identifying your company through it. If your logo is not protected, then there is nothing to stop some other person from copying your logo and duping consumers into thinking they are buying your products. This person is, in essence, riding on your success to sell his own product; something that no company would want. The easy solution to this is to get your logo or brand name registered as a trademark under Indian law.

It’s easy enough to come up with a trademark. It could consist of words, designs, letters, slogans, symbols, or even a sound. Remember the Britannia ting, ting, ta-ting? You might be in the dining room eating dinner when this ad comes on the bedroom TV, and you’ll still know that the ad was for Britannia, without having to actually see the ad. What about the Microsoft Windows sound? The next time you boot your computer listen carefully to the tune played when Microsoft Windows opens. These sounds could very well be used as trademarks. Who knows, in the future maybe even smells will be used as trademarks! The only thing you have to make sure while coming up with your own trademark is that it is distinctive and does not resemble the trademark of any other company in such a way as to confuse consumers between the two.

A common fault made by most people is using descriptive names as trademarks. People tend to think that by using a descriptive name as their trademark it will be easier to remember or to connect it with their products. The law, on the other hand, feels very differently about this. One of the requirements of a trademark is that it must be distinctive. When a trademark is descriptive, it is not distinctive. The trademark should have no direct reference to the quality or character of goods. A trademark is said to be descriptive if it describes the nature of identity of the goods or services for which it is used. Take for example Fair & Lovely. Using Fair & Lovely as a product name to launch a cream that is suppose to make you fair and lovely is hardly distinctive. It is in fact too descriptive to be a good trademark. On the other hand, brand names like Cinthol for a soap, Lakme beauty products, Colgate toothpaste… all these are good trademarks, because though the products are recognized by the name, these names do not describe the actual product. Have you ever actually stopped and thought about what ‘Bata’ means? If you ask anyone on the road the meaning of ‘Bata’, they’ll tell you it means Bata shoes. But how is the term ‘Bata’ even connected with shoes? That’s the power of a trademark. The word might make no sense, but everyone still knows its meaning.

The best way to guarantee a distinctive trademark is to make up a word. Just make sure the word is easy to pronounce, not too difficult to spell and is not descriptive in nature.

How can I get Trademark protection?

There is a twin fold goal of trademark law. One is to protect the business owners from people taking advantage of their business, and the other is to protect the consumers and prevent them from buying sub-standard quality products while under the false impression that they are buying it from a well reputed business.

The best way to protect a trademark is by FILING AN APPLICATION FOR REGISTRATION OF A TRADEMARK under the Trademarks Act, 1999. This application has to be filed with the Trademarks Registry, which has its offices in Delhi, Mumbai, Chennai and Kolkata. Though it is not compulsory under the Indian law to register your trademark, the legal protection you obtain when you do so is much stronger than in cases where the trademark is unregistered. The usual protest against any form of registration is the financial burden. Yes, a person wanting to register his trademark will have to pay a small amount, but the benefit he obtains from protecting his trademark far outweighs the problems he might face if he doesn’t. Registration is for a lifetime; the trademark will not expire as long as you use it. All that is necessary is to renew the trademark every ten years by paying a nominal fee to the government.

As soon as you file an application for a trademark, it automatically gets some protection while the application is still pending. The tiny ™ next to the logo or brand name is a way for the world to realize that you have a trademark application pending and if they copy your trademark it will lead to infringement. Once it is registered the symbol ® will be added to your trademark to show that it has been recognized by the government. Be careful, if you pretend that your trademark has been registered before it actually has been you can be punished under law.

What do I do when my trademark is infringed?

If you’ve already registered your trademark, the legal battle ahead of you is fairly straightforward, but even an owner of an unregistered trademark does have some recourse in law. He can always file a case in court to get compensation for the infringement of his registered trademark. However the fact remains that an unregistered trademark is far more vulnerable, especially for those marketing new products, and the remedies open to unregistered trademark owners can be claimed only after infringement has taken place.

Once a trademark has been registered, the owner of the trademark has legal rights to prohibit others from using it. It is very easy to avail this protection. If he can prove that the infringing mark is deceptively similar to his and because of this is causing confusion in the market, then there is a high probability of success in his action for infringement. It is not even necessary for him to show that he has suffered actual loss, just the likelihood of it is sufficient.

Once infringement takes place, the owner has the option of filing a civil suit to seek compensation for himself. He may even decide to institute criminal proceedings against the infringer to punish him. Both actions can be initiated simultaneously.

In any case, a trademark becomes effective and valuable only if the owner actually uses the trademark and takes prompt action against any infringer. If no action is taken, there is a likelihood of the trademark becoming a generic word. The distinct nature of the mark will be lost if every Tom, Dick and Harry starts using it to describe their goods. A good example of this is ‘Aspirin.’ I’m sure, at some point of time, you’ve been told to take an aspirin when you’ve had a headache, though no one really specifies what exactly they mean when they say “take an aspirin.” It’s a little known fact that, at one time, ‘Aspirin’ was a registered trademark. Over the course of time because of unchecked usage by others it has lost its unique character and is no longer identified by the company that originally filed for the trademark.


Conclusion

The ultimate aim of any company is to be recognized, and with a new company starting every day, it’s becoming harder and harder to remain unique amidst a sea of similar businesses. The only way of standing out in the crowd is by having a distinctive trademark, through which a consumer can identify your product. It’s a simple marketing strategy followed the world over. Recognition equals Sales equals Profit.

In the end a well chosen and well protected trademark is the greatest identification of a company. Be creative, come up with the wackiest thing imaginable, and make sure you register it with the Trademarks Registry so that you’re protected under law. After all, seeing is believing.