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Tag: trademark protection

  • InACan: The Indian Startup Mixing Innovation, IP, and Convenience in a Can

    What if you could open your fridge and pull out a perfectly crafted cocktail? No fuss of a bartender, muddler, measuring, or mess? That’s exactly the experience InACan set out to create.

    The story begins with Sameer Mirajkar and Viraj Rajendra Sawant, two friends who wanted to break down the barrier between everyday life and premium cocktails. For them, it wasn’t just about alcohol; it was about giving people a slice of the “bar experience” wherever they were, be it at home, on a road trip, or at a house party.

    But vision alone wasn’t enough. To bring it to life, they needed a master of the craft. Enter Varun Sudhakar, a veteran of the craft whose hands had shaped countless cocktails behind some of the country’s busiest counters. Together, the trio didn’t just build a product; they built a journey. Nine months, 15,000 kilometres of road travel, and endless hours of experimentation later, they had their answer: InACan.

    Intellectual Property (IP) Portfolio

    The brand launched with five variations of cocktails, packaged in sleek cans that felt just as premium as the drinks inside. From Mojitos to Cosmopolitans, each sip promised the same balance and consistency that you’d expect from a high-end bar. And perhaps that’s why InACan instantly stood out as a carefully engineered experience.

    And when you’re building a brand in such a competitive space, IP protection isn’t a luxury, but it’s survival. InACan understood this from the beginning and moved quickly to secure its most valuable asset: its name.

    Here’s what their trademark portfolio looks like:

    Word MarkApplication No.ClassDate of ApplicationProprietorStatusValid UptoDescription
    INACAN48526213206/02/2021Sameer MirajkarRegistered06/02/2031Ready-to-drink non-alcoholic beverages
    INACAN48526223306/02/2021Sameer MirajkarRegistered06/02/2031Ready-to-drink alcoholic beverages

    This dual-class filing is strategic genius. Mocktails (Class 32) and alcoholic cocktails (Class 33) are both protected by it. Therefore, InACan’s brand identity is protected regardless of whether they are selling to partygoers or teetotallers.

    Beyond trademarks, the packaging design, those instantly recognisable cans are another soft IP that adds to their brand value. While not formally registered as a design yet, it’s an area ripe for protection in the future. And let’s not forget their semi-automatic can seamer machine. If unique enough, this innovation could even be eligible for a design registration or utility patent.

    Why does this matter? Because in beverages, customers buy the brand as much as they buy the liquid inside. If someone else launches “Ina-Can” tomorrow with confusingly similar packaging, the damage would be irreparable without strong IP protection.

    Business Contracts: They Probably Employ

    Behind each can of Mojito or Cosmopolitan, there is an entire universe of contracts keeping the business in place. For InACan, these probably consist of:

    1. Supplier Contracts – For spirits, mixers, fruit extracts, and packaging. One poor batch of ingredients can ruin brand trust, so these must have rigorous quality clauses.
    2. Manufacturing Agreements – In the event that production is outsourced, the agreements must ensure consistency, hygiene, and adherence to excise norms.
    3. Distribution Contracts – Alcohol distribution in India is controlled by the State Governments. Thus, InACan must have watertight contracts with wholesalers and modern retail chains.
    4. Employment Contracts – For all, from marketing teams to R&D personnel. Due to the premium positioning, employee confidentiality and non-compete clauses become imperative.
    5. Marketing & Influencer Agreements – As the business is lifestyle-driven, influencer collaborations are strong but also legally hazardous if expectations are not documented.
    6. Consultancy Agreements– For FSSAI consultants, excise law consultants, and compliance consultants.
    7. Future Licensing/Franchising Agreements – If they scale up to physical cocktail lounges or kiosks, contracts will determine revenue-sharing, branding rights, and such.

    In essence, every contract serves as a safety net, averting conflicts before they arise. They also guarantee seamless operations in a legally delicate sector.

    Due Diligence

    Now, picture it as a Shark or any investor evaluating InACan. What would they look for before writing a cheque? Due diligence is necessary in this situation.

    • Corporate Structure: InACan operates under RM Beverages Private Limited (CIN: U15540PN2022PTC214999), registered in Pune in 2022. With an authorised capital of ₹60 lakh and a paid-up capital of about ₹27 lakh, the company is still in its early but promising growth stage. Its FY 2023 revenue was around $202K or ₹1.6 crores, a healthy start for such a niche product.
    • Governance & Directors: The founders, Sameer Mirajkar and Viraj Sawant, are listed as directors and occupy executive roles. Through the most recent AGM in December 2023, MCA compliance and timely AGM filings were maintained. This is one of the ways the company shows its compliance standards.
    • IP Audit: It is crucial to confirm that the Class 32 and Class 33 marks are also being actively used in addition to being registered. Because they might be open to imitation if they don’t comply or submit an IP filing.
    • Regulatory Compliance: Alcohol is an Indian legal minefield. So, InACan must hold:
      • FSSAI licences for food safety.
      • Excise approvals for alcohol manufacture and sale.
      • GST registrations.
      • Labelling compliance, like alcohol content, batch numbers, health warnings, and such.
    • Contracts Check: Reviewing distributor and supplier agreements to ensure no clauses could cripple future expansion, like exclusivity traps.
    • For investors, this process isn’t red tape; it’s insurance. A lapse in excise compliance could mean a state-wide ban on sales. A weak supplier contract could cause stock-outs. Due diligence, then, guarantees that investors are placing their money on a company that is both innovative and compliant with the law.

    Key Legal & Business Lessons

    InACan’s journey offers a playbook for other startups:

    • Think Ahead with IP – Filing in both alcoholic and non-alcoholic classes shows foresight. Too many startups wait until they’re bigger to think about trademarks, and by then, it’s often too late.
    • Contracts Are Quiet Heroes – Consumers never see them, but contracts decide whether your supply chain runs smoothly or collapses overnight.
    • Regulation Isn’t Optional – In food and beverage, compliance is survival. Skipping licences or excise filings is like playing Jenga with your business.
    • Due Diligence Builds Investor Trust – No Shark (or VC) will invest unless the legal house is in order. Strong contracts, IP filings, and spotless MCA records all engender trust.
    • Convenience Is King – At its core, InACan proves that consumers crave products that combine quality with accessibility. That’s a lesson that cuts across industries.

    Conclusion

    InACan isn’t just selling cocktails, it’s selling moments. A Cosmopolitan on a Friday night without a trip to the bar. A Mojito at a house party without worrying about mint leaves. Convenience wrapped in consistency, delivered in a can.

    A well-constructed legal and business foundation, however, is just as significant as the flavour and fizz. Innovation plus protection is what makes a startup, as InACan exemplifies by securing dual trademarks, negotiating strong contracts, and guaranteeing adherence to India’s intricate alcohol regulations.

    As India’s drinking culture evolves, and as consumers demand premium experiences in simpler formats, InACan is perfectly placed to lead. For entrepreneurs, the lesson is clear: protect your brand, lock down your contracts, stay compliant, and let your product shine.

    Because in the end, the real recipe for success is equal parts creativity and compliance.

    Author Details- Apoorva Lamba (3rd Year Student, Madhav Mahavidyalya, Jiwaji University, Gwalior)

  • How to Become an Amazon Seller in India: Licenses and Registrations You Need

    One of the most well-liked business models in India right now is selling on Amazon. Everyone seemed to be taking advantage of India’s increasing e-commerce market, from major firms going online to students pursuing side projects. On the surface, it appears simple to register, submit your goods, and begin shipping.

    The catch is that you cannot overlook compliance if you wish to sell in a way that is both sustainable and lawful. Indian regulations apply to any goods you offer on Amazon. All of your invoices must adhere to tax regulations. Every category has its own regulators, ranging from electronics to food.

    So, before you click “Start Selling,” let’s break down all the licenses and registrations you’ll need. Think of this as your compliance checklist, written in plain English, with a focus on why each license actually matters.

    Why Compliance Matters for Amazon Sellers

    Let’s be real. Some sellers try to skip compliance. They list products without GST, sell food without an FSSAI license, or import gadgets without BIS certification. And yes, they may even get away with it for a while.

    But sooner or later, either Amazon’s internal audits or government inspections catch up. Accounts get suspended, heavy penalties are imposed, or goods are seized. There have been cases where a seller invested lakhs in inventory only to lose everything because their licenses weren’t in place.

    In contrast, compliant sellers enjoy smoother operations, better visibility, and long-term trust. Amazon itself prioritises sellers who upload the right certificates because, for Amazon, customer trust is everything.

    Let’s get down to business and see what you truly need.
    Establishing.

    Your Foundation through Business Registration

    Deciding on your operating style is the first step:

    • A sole proprietorship is the simplest to establish and involves the least amount of paperwork, but all risks are assumed by you alone. Excellent for novices trying things out.
    • Partnership or LLP: An LLP protects you from liabilities if you’re starting with a co-founder.
    • Private Limited Company: The most reliable choice for raising capital, expanding, or luring large corporate clients.

    Pro Tip: Although Amazon accepts all file types, the majority of profitable sellers eventually change their business structures to Pvt Ltd. to gain credibility with suppliers, banks, and even Amazon.

    GST Registration-Non-Negotiable

    GST is one licence that you cannot avoid.

    • Why: Before you can begin selling the majority of things on Amazon, the company requests your GSTIN.

    • Exceptions: You will still need to check with Amazon to find out if some categories (such as unbranded food grains) are GST-exempt.

    • Advantage: By reducing the GST you pay on purchases, you can lower your tax burden by claiming the Input Tax Credit (ITC), which is made possible by having GST.

    Your account will either not be approved or will stay restricted if GST is not included.

    Your business identity is your PAN and current account.

    • Permanent Account Number (PAN): Required for filing taxes.

    • Bank Account: A bank account associated with your company name is required by Amazon. It must be a current account for businesses and limited liability partnerships. For sole proprietors, a savings account may work, but a current account looks more professional.

    Amazon disburses payments directly to this account, so it’s non-negotiable.

    FSSAI License – If You Sell Food

    Food is one of the hottest categories on Amazon, from packaged snacks to herbal juices. However, this industry is also heavily regulated.

    The Food Safety and Standards Authority of India (FSSAI) requires all Food Business Operators (FBOs) to register with them.

    • Applicability: FSSAI is necessary whether you are producing the food in-house or simply selling packaged food from a supplier.

    • Types: Central FSSAI (turnover > ₹20 crore or interstate trade); State FSSAI (turnover between ₹12 lakh and ₹20 crore); and Basic FSSAI (for turnover < ₹12 lakh).

    For example, you will want an FSSAI manufacturing licence if you are selling protein powder under your own brand. Make sure the original producer has an FSSAI licence if you’re retailing packaged snacks. In some cases, you’ll also need a distributor licence.

    Trademark Registration – Protecting Your Brand

    On Amazon, brand identity is everything. If you don’t trademark your brand, someone else might. I’ve witnessed vendors invest years in developing a brand, just to have their listings taken over by counterfeiters.

    Advantages of Trademarks:

    -Provides legal protection for your brand name or emblem.

    -Permits you to sign up for the Amazon Brand Registry, which offers you enhanced visibility, sophisticated listing options, and hijacker protection.

    Apply for a trademark as soon as possible if you want to create a lasting brand.

    Import-Export Code (IEC)

    India is a global market. Many sellers import products from China or Korea, while others export Indian handicrafts, spices, or apparel to the world through Amazon Global Selling.

    • Needed for: Sellers that export through Amazon Global Selling OR import goods to resell in India.

    • The Directorate General of Foreign Trade (DGFT) is the issuer.

    • Procedure: Easy online application that is often processed within a few days. An IEC is necessary, for instance, if you import Korean skincare products or export Indian handicrafts.

    Shops & Establishment License

    This one is often ignored but is required by many state governments.

    • Purpose: Registers your office/warehouse under state labor laws.
    • Why it matters: Banks sometimes ask for this license when you open a current account.

    Professional Tax Registration (State-Specific)

    If you’re hiring employees, some states (like Maharashtra, Karnataka) mandate professional tax registration.

    • Penalty: Non-compliance can lead to fines during inspections.
    • Pro Tip: If you’re scaling with staff, check state laws in advance.

    Sector-Specific Licenses

    Some categories require further approvals, like:

    • Aayush License: For Ayurveda, herbal, or homeopathic related products.

    • Drug License: For pharma items.

    • BIS Certification: Required for devices such as power banks, LED lights, and other such appliances.

    Even if you sell pre-packaged goods with MRP, weight, or volume, you must register for legal metrology.

    These frequently determine if you are permitted to list in particular categories on Amazon.

    The Internal Compliance of Amazon

    Amazon applies its own compliance guidelines even if you possess all government licenses:

    Upload your PAN and GSTIN.

    • Provide product certifications (such as BIS and FSSAI).

    • Adhere to stringent return and packaging guidelines.

    Account suspension may result from noncompliance, even if you are lawfully registered.

    Imagine two vendors selling the same item. Compliance is your moat, not a barrier. One complies completely, whereas the other does not. The compliant seller gets better trust, visibility, and long-term stability. Yes, paperwork takes time. Yes, licenses cost money. But in the bigger picture, compliance weeds out the unserious sellers and protects the customers. That’s why it should be seen as your competitive advantage.

    Step-by-Step Roadmap for New Sellers

    1. Register your business (Proprietorship/LLP/Pvt Ltd).
    2. Apply for GST and open a current account.
    3. Get category-specific licenses (FSSAI, BIS, Ayush, etc.).
    4. Protect your brand with a trademark.
    5. Register on Amazon Seller Central and upload compliance docs.
    6. Stay compliant with renewals, inspections, and records.

    Conclusion

    Being an Amazon seller involves more than just listing goods; it also entails developing a reputation for reliability. Licenses such as GST, FSSAI, and BIS are safeguards that protect you and your brand, rather than obstacles.

    Therefore, start with compliance if you’re serious about selling on Amazon. Every license you obtain is like a seal of credibility telling your customers: You’re safe with me.

    Author Details-Apoorva Lamba (3rd Year Student, Madhav Mahavidyalya, Jiwaji University, Gwalior)

  • TRIPLE IDENTITY TEST IN TRADEMARK

    A trademark is a distinctive word, symbol, sign, or combination thereof that distinguishes the goods or services of one enterprise from those of others in the marketplace. It functions as a distinctive mark or a unique identifier for a business’s products or services, giving customers a simple means of identifying and differentiating brands. Trademarks are crucial for safeguarding a company’s reputation, intellectual property, and brand identity.

    A trademark, as defined by law, is any word, name, symbol, device, or combination of these that is used to identify and set one entity’s goods or services apart from another. A trademark confers upon its registered proprietor the exclusive right to use the mark in relation to the specified goods or services and protects against unauthorized use of confusingly similar marks.

    THE TRIPLE IDENTITY TEST

    As branding becomes more and more important in the marketplace, courts are frequently asked to decide whether a mark has been violated by another’s use. In such cases, Indian courts have implemented a structured judicial standard called the ‘Triple Identity Test’, particularly those involving direct copying.

    The ‘Triple Identity Test,’ as a judicially developed standard, looks at three concurrent elements to determine whether a trademark has been violated.

    • Whether the mark in question is identical or deceptively similar to the registered trademark;
    • Whether the goods or services in question are identical or of the same description, and
    • Whether the trade channels or distribution networks used by the parties overlap.

    Under Sections 29(1) to 29(3) of the Trade Marks Act, 1999, courts establish infringement where all three limbs are satisfied and which presume likelihood of confusion by the consumers.

    Section 29(1), (3) of the Trade Marks Act, 1999

    (1) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which is identical with, or deceptively similar to, the trade mark in relation to goods or services in respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark.

    (3) In any case falling under clause (c) of sub-section (2), the court shall presume that it is likely to confuse the part of the public.

    In cases where the marks are either identical or deceptively similar, and the infringement occurs on the same class of goods through comparable distribution networks, this test has proven especially helpful. It not only makes judicial reasoning easier, but it also strengthens the enforcement of statutory rights conferred upon registered trademark owners.

    CASE ANALYSIS

    1. M/s Jain Electronics v Cobra Cables Pvt Ltd and Ors [2011] 45 PTC 52 (Del)

    Facts

    M/s Jain Electronics, the petitioner, applied on 19 November 1987, to register the trademark ‘COBRA’ for voltage stabilizers under Class 9. The Cobra Cables Pvt Limited opposed the application, claiming that it had previously registered the identical ‘COBRA’ mark for electrical apparatus and that it had obtained the mark through a series/chain of assignments. The Deputy Registrar rejected the petitioner’s application on the grounds that the triple identity test was satisfied, as the goods were of the same description, the mark was identical, and the channels of trade and sale were similar. This decision was affirmed by the Intellectual Property Appellate Board (IPAB), leading the petitioner to file a writ petition before the Delhi High Court.

    Petitioner’s Contention

    The petitioner contended it had been using the mark “COBRA” since 1978 and that such prior use justified the registration.

    Respondent’s Contention

    The respondent argued that they were the lawful proprietor of the registered trademark, which was acquired through a valid assignment, and that the petitioner’s use was insufficiently evidenced.

    Held

    The Hon’ble Delhi High Court dismissed the writ petition, upholding the findings of the Deputy Registrar and the IPAB. The Court observed that the petitioner’s 1984 invoices did not prove that the mark ‘COBRA’ specifically was used in connection with voltage stabilizers. The Court reiterated that:

    • That the marks were identical;
    • That the goods, voltage stabilizers, and electrical apparatus were identical in description;
    • There was an overlap in the sales channel.

    Hence, the Triple Identity Test was deemed to be met, and it was assumed that the general public would become confused.

    “The use of an identical mark in respect of the two goods is bound to cause deception and confusion in the market.”– Delhi High Court

    2. Sumeet Research and Holdings Pvt Ltd v Sipra Appliances [2018] CS (COMM) 428/2016 (Del HC)

    Facts

    Sumeet Research and Holdings Pvt Ltd, the plaintiff, was the registered owner/proprietor of the well-known trademark ‘SUMEET’, which is widely used in relation to kitchen appliances. After, the defendant, Sipra Appliance, started using a similar mark ‘SUMEET’ on similar goods. The plaintiff filed a permanent injunction under the Trade Marks Act, 1999, for trademark infringement and passing off.

    Issue

    Whether the defendant’s use of the identical mark ‘SUMEET’ for similar goods sold through the same channels amounted to trademark infringement under the ‘Triple Identity Test’.

    Petitioner’s Contention

    The plaintiff claimed that the defendant’s use of “SUMEET” was dishonest, amounted to infringement under Section 29(1) of the Trade Marks Act,1999, and by deceiving customers into thinking that it was an association or affiliation.

    Defendant’s Contention

    The defendant was unable to provide convincing evidence of prior use or lawful adoption of the said mark.

    Held

    The Delhi High Court granted a permanent injunction, holding that the plaintiff had established infringement by satisfying all three limbs of the Triple Identity Test:

    • That the trademarks were deceptively similar;
    • That the goods, namely kitchen appliances, were identical in nature and the way they function;
    • The trade channels, retail stores, and electronic marketplaces were also similar.

     The Court further noted that the reputation and goodwill attached to the plaintiff’s mark would be diluted and that the consumer confusion was inevitable/unavoidable. Infringement under Section 29(1)(3) of the Trade Marks Act, 1999 was held to be clearly established.

    “The concurrent satisfaction of all three conditions—the mark, the goods, and the trade channels—creates a presumption of confusion and deception.” – Delhi High Court

    CONCLUSION

    Under Indian law, the ‘Triple Identity Test’ has established a solid reputation as a useful and judicially accepted technique for identifying trademark infringement. Examining the concurrent similarity of the mark, the products or services, and the trade routes, this test provides a targeted method for determining the possibility of consumer confusion, which is a crucial component of both infringement and passing-off cases. As evidenced by landmark rulings like Sumeet Research and Holdings Pvt Ltd v. Sipra Appliances and Jain Electronics v. Cobra Cables Pvt Ltd, the courts have continuously used the test to maintain trademark protection in cases where obvious imitation is present.

    Although the test is not legally codified, judges have endorsed it, indicating that it is a useful tool for expediting infringement analysis in cases with clear-cut facts. Its rigidity, however, might make it less applicable in complicated disputes that call for a more nuanced multifactorial analysis. Finally, by striking a balance between doctrinal clarity and business viability, the ‘Triple Identity Test’ strengthens trademark law’s fundamental goals of safeguarding marks, distinctiveness, and preventing consumer deception in the marketplace.

    Author: Suhani Sharma

  • USING TRADEMARK SYMBOLS

    INTRODUCTION

    In today’s competitive business environment, building and defending your brand identity is imperative. One of the most important steps is realizing the difference between the trademark symbols TM (™) and R (®). Although the symbols look alike, they are used for different purposes and have varying legal consequences. The TM symbol usually means an unregistered trademark, indicating that a company asserts rights over a brand or logo that is perhaps still under registration.

    The ® symbol, on the other hand, represents a registered trademark, providing greater legal protection under the Trademarks Act, 1999 in India and other foreign trademark legislations. This article examines the meanings, applications, legal implications, and branding effects of the TM and ® symbols to enable businesses to make informed choices in asserting and defending their intellectual property.

    With expert trademark registration services, TMWALA can help businesses navigate this process, ensuring proper use of symbols and compliance with applicable laws.

    Knowing the distinction between the TM (™) and R(®) symbols is important since it can help you promote your brand identity. After completing the Trademark Registration process in India, there are no restrictions on where the ® symbol can be placed.

    WHAT DOES THE TM (™) SYMBOL MEAN?

    When products have applied for Trademark Registration, they are frequently branded or advertised using the TM (™) sign, which indicates an unregistered trademark. This indicates that you claim trademark rights over the mark. After text, images, or other content that they claim to be their own but have not yet formally registered with a regulatory body, businesses may use the trademark superscript, ™. Sometimes companies will use ™ to signify that they have applied for registration or that this is their first use. From a business standpoint, it implies that the person marketing a certain good or service thinks it is unique.

    WHAT MAKES USING THE TM SYMBOL CRUCIAL?

    Because it alerts consumers that you are trying to register the mark, which is protected by common law rights, it is essential to use the TM symbol for trademarks. If you don’t use the TM symbol, customers might not identify your mark as a trademark.

    The TM emblem safeguards your common law rights to the mark and alerts possible infringers that you believe it is currently in use.

    WHAT DOES THE R (®) SYMBOL MEAN?

    A product is a Registered Trademark if it bears the R (®) symbol. This indicates that the logo is protected by law under the 1999 Trademarks Act. Trademark Registrations are valid for ten years, however, they can be extended by going through the renewal procedure. A person or company may face trademark infringement charges if they use the registered name, logo, or symbol without the owner’s prior permission.

    WHAT MAKES USING THE ® MARK CRUCIAL?

    When it comes to registered trademarks, the ® symbol is essential since it alerts consumers that the mark is protected by federal law. If you don’t use the ® symbol, customers might not know that your trademark is registered.

    On the other hand, the ® sign notifies potential infringers that your mark is registered with the USPTO and deters potential infringers by demonstrating that you have a valid claim to the mark.

    FOLLOWING ARE THE KEY DIFFERENCES BETWEEN TM (™) AND R (®)

    The ® and ™ symbols are interchangeable for the average person. However, that is untrue. The symbols ® and ™ have several meanings. Usage Following the successful registration of the company’s trademark, the ® symbol may be used.

    However, if a trademark for the specific commodity or service is still pending registration, the ™ symbol may be used. The ® symbol cannot be used in certain circumstances because the mark has not yet received approval.

    Three differences exist between the TM and ® symbols:

    1. When they’re used
    2. Their meaning
    3. Their influence

    Usage

    The TM symbol can be used with both registered and unregistered trademarks, while the ® symbol is only allowed for registered trademarks. You can’t use the ® symbol unless you’ve registered your trademark with the USPTO.

    The ® symbol is only permitted for registered trademarks, whereas the TM symbol can be used regardless of whether your brand is registered with the USPTO.

    Meaning

    The ® symbol denotes that a trademark is registered with the USPTO and is protected by federal law, whereas the TM symbol indicates that someone asserts exclusive rights to a trademark, which may or may not be registered.

    Influence

    Since the TM symbol lacks federal protection, it is less potent than the ® symbol. Even so, adopting the TM symbol can assist in shielding your trademarks from infringement and avoiding consumer confusion.

    The Legal Aspects Concerning

    • The ® mark is legally protected and penalized for copying
    • The ™ trademark symbol has no legal support or advantage.

    Branding Purpose:

    • While awaiting the process to be finished, the ™ symbol typically indicates a preference for the brand identity of the business, organization, or person.
    • You will feel more confident using your intellectual property to develop strong brand equity if you utilize the ® symbol to market your goods or services.

    TMWALA can assist you not only in registering your trademark but also in monitoring and enforcing it, ensuring that your brand identity stays secure from misuse and infringement.

    CONCLUSION

    The main distinction between the two symbols is that one (TM) is used with a mark that is not registered, and the other (R) is used with one that is registered. Knowing the distinction will be beneficial to those looking to protect their brand because the user of just TM may be a notification, and the infringement of the brand by any other party will not be treated as a serious issue. Proper use of these symbols will also make the brand of the business strong and prevent the brand from being misused by unauthorized persons.

    In India and worldwide, the business has the liberty to label its products using the symbol (TM) and (R), and it can use it in its company’s name as well. Always use these symbols according to the norms of the applicable laws.

    With end-to-end trademark solutions from filing to post-registration support, TMWALA empowers businesses to take full control of their brand protection journey.

  • TRADEMARK REGISTRATION IN INDIA: WHAT, WHY, HOW

    INTRODUCTION

    One must obtain Trademark Registration in India to acquire Trademark Rights. In India, Trademark Rights are protected as statutory rights under the Trademark Act of 1999. Under the Act, this kind of protection is administered by the Controller General of Patents, Designs, and Trademarks. The Trademark Act of 1999 addresses trademark fraud prevention, registration, and protection. The rights of the trademark holder, penalties for trademark infringement, damages settlement, and trademark transfer processes are also covered.

    WHAT IS A TRADEMARK?

    A trademark is a type of intellectual property that sets one brand’s products and services apart from those of other brands. A trademark consists of a word, phrase, insignia, symbol, or combination of all in one. A trademark indicates who owns a certain commodity or service, and as the owner has the sole right to use the mark, they may object if someone else attempts to use it for their own goods or services.

    Trademark as defined under section 2(1)(zb) is ““trade mark” means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours;”

    DIFFERENT KINDS OF TRADEMARKS IN INDIA

    According to WIPO, a trademark can be “A word or a combination of words, letters, and numerals can perfectly constitute a trademark. But trademarks may also consist of drawings, symbols, three-dimensional features such as the shape and packaging of goods, non-visible signs such as sounds or fragrances, or color shades used as distinguishing features – the possibilities are almost limitless.” Hence, everything right from signs, symbols, sounds, fragrances, colours to shapes can be trademarked. The possibilities are endless. So long as a mark is unique, distinctive, and helps in source identification, it can be trademarked.

    HOW TO OBTAIN TRADEMARK REGISTRATION IN INDIA?

    You must first rule out the possibility that the mark you want to use as a trademark for your business is free. For this, you must check whether your proposed trademark is already used or registered by someone else. This is done by conducting a thorough trademark search.

    The process of submitting the registration application follows the completion of the search. Depending on one’s jurisdiction, the application must be submitted in Form TM-A either physically at the Trademark Registry Office or online at IP India’s official website. The fees will be determined for each class of products and/or services contained in the application, and the application must be submitted for registration of a single class or several classes.

    The necessary paperwork and all of the trademark’s details must be included with the application. A user affidavit attesting to the mark’s usage and providing proof of its previous use in commerce must be attached if the trademark was already in use prior to the application being filed (i.e., the owner wishes to claim prior use).

    After this comes the different stages of the trademark registration process, namely:

    Formality Check: Here, the Trademark Registry checks whether all the formalities and procedural aspects have been duly and correctly done by the applicant while filing its trademark application. During this stage, the status of your trademark application is either ‘Formality Chk Pass’ or ‘Formality Chk Fail’, depending on whether there are any defaults observed.

    Examination Stage: During this stage, the Examiner of Trademarks checks whether your proposed mark qualifies for trademark registration. Here, the examiner basically checks whether a mark possesses trademarkable qualities. For this, the Examiner typically refers to Section 9 and Section 11 of the Trade Marks Act, 1999. During this stage, the status of your trademark application is ‘Objected’.

    The applicant gets 1 month to file reply to the Examination Report to submit its defence on why their trademark deserves to be granted registration. If reply is found satisfactory, the trademark proceeds for acceptance, if not, then Hearing for the matter is scheduled. If the Examiner is not satisfied with the defence of the applicant, the trademark application is abandoned.

    Acceptance and Advertisement: If the Examiner is satisfied regarding the trademark-ability of the proposed mark, they accept the trademark and publish it in the trademark journal. A trademark stays Accepted and Advertised for a total period of 4 month, during which, any person in the entire world, who has an objection over the registration of the advertised mark, may oppose it. If the trademark does not receive any oppositions during this 4 month period, then the trademark receives its registration.

    Opposition: During the 4 month, any person may file opposition against the registration of a trademark under section 21 of the Trade Marks Act, 1999. Such opposition may be filed on varied grounds typically contained under section 9, 11, 27, 28, 29, 102, 103 and 104 of the Trade Marks Act. Grounds for filing opposition may be – Similarity or identicalness with a prior used trademark, descriptiveness of a trademark, trademark being of such a nature that would be likely to cause confusion or deception, lack of bona fide intention, infringement, passing off, false description of trademark etc.

    Counterstatement: After filing of the opposition, the applicant gets an opportunity in the form of counterstatement to file its written defence in support of its trademark within 2 months of service of the notice of opposition. Here, the applicant has to explain why their trademark deserves to be granted registration and how the allegations and contentions contained under the opposition are incorrect.

    Evidence Stage: After counterstatement comes the stage of evidence submission. Both the opponent and the applicant get an opportunity to present evidence by the way of affidavit in support of its opposition and trademark application respectively. They may however, choose not to give evidence at this stage and solely rely on the grounds contained under the opposition and the counterstatement.

    Hearing Stage: During this stage, the opposition proceedings are scheduled for hearing before the Registrar of Trademarks, who, after hearing the contentions of both the side, decides whether such trademark deserves registration or the same shall be refused registration.

    The registrar passes it order based upon written statements, evidences and arguments from both the parties. Such order is a written order.

    Registration: After this stage, if the Registrar is satisfied with the registrability of the trademark application, the trademark is entered into the trademark register and trademark registration is granted.

    REQUIRED DOCUMENTS

    To register a company’s trademark online in India you must follow a process, first you need to provide the following details to the Trademark Registry through TM form:

    • Applicant’s Name: The name of the person, company, or entity applying for the brand Trademark Registration.
    • Class: Specify the class in which your goods or services fall, such as sole proprietorship, partnership, private limited company, etc.
    • Trade Objectives: Provide a brief description of your trade objectives.
    • Brand Name: Clearly mention the name, logo, or slogan that you intend to use as trademark.
    • Registered office Address: Provide your registered office address from where you are going to operate your business. 

    To apply for Trademark Registration online, or simply to register a logo, you will need to submit the following papers in addition to these details:

    APPLICANT TYPEREQUIRED DOCUMENT
    IndividualPAN card
    Aadhar card
    ProprietorshipGST Certificate
    PAN Card
    Aadhar card
    CompanyIncorporation certificate
    Company PAN card
    MSME certificate (if applicable)
    Logo (if applicable)
    Partnership FirmPartnership Deed
    Partnership PAN card
    MSME Registration certificate
    Logo (if applicable)
    Limited Liability Partnership (LLPs)LLP Deed
    Incorporation certificate
    LLP PAN Card
    Logo (if applicable)
    TrustsTrust Deed
    Trust PAN Card
    Logo if applicable

    CONCLUSION

    Trademark Registration is an important process of protecting the identity of a brand and giving exclusive rights over its usage. Trademark protection in India is under the Trademark Act of 1999, which provides legal protection against infringement and abuse. Ranging from word marks to non-conventional marks, a large range of trademark categories can be registered, depending upon the business. The Trademark Registration process entails carrying out an extensive trademark search, submitting the proper application along with supporting documents, and familiarizing oneself with the legal usage of trademark symbols such as ™ and ®. Registration of a trademark not only provides businesses with legal protection but also helps to increase brand value and customer confidence in the marketplace.

  • Ethical Considerations in Trademark Law: Why Playing Fair Matters

    Introduction

    In this age of competition, the name, logo, and identity of a brand are everything. Brands are recognized by their names and logos, so that is part of the reason people trust them. But what if somebody unjustly replicates a well-known brand’s emblem or title?

    This is where the ethical aspects of trademark law come in.There’s more to trademark law — registering logos or slogans — than just trademark law; it’s also about doing the right thing.

    Being ethical means that you play fair, that you respect other people’s work, and that you do not mislead customers.

    Let’s break this down to understand what it means in layman’s terms.

    What is a Trademark?

    A trademark can be a sign, symbol, word, or logo that helps people identify your business or product.

    For example Nike Swoosh, the McDonald’s golden arches or the Apple logo have become so synonymous with the companies that you can tell immediately who owns them.

    Trademarks provide confidence to consumers that they know what they are purchasing.

    This is why it’s so important that trademarks are used fairly and ethically.

    What Are Ethical Considerations in Trademark Law?

    Ethics in trademark law is about ensuring that:

    • You don’t replicate someone else’s brand.
    • You can make a ton of products under one logo or product line without confusing the customer into thinking they are all alike.
    • You are sensitive towards cultural and religious sentiments.
    • You don’t use trademarks in a way that damages the business or reputation of others.

    It’s about being honest and fair with your making and using your brand.

    Why Are Ethics Important in Trademark Law?

    The ethics in trademark law matter because:

    1. Protects Honest Businesses: If anyone was allowed to copy brands freely, this would harm original creators. Ethics safeguard people who work tirelessly to create their brands.
    2. Prevents Customer Confusion: Consider if you bought a sneaker designed to look like a Nike shoe, and when you bought it realized it was not the real thing — you would feel ripped off. We have ethics that guard against that kind of confusion.
    3. Encourages Creativity: Ethics, on the other hand encourage businesses to forge their own unique identities rather than imitating.
    4. Respects Society and Culture: Trademarks cannot offend public sentiments or tarnish religious symbols.
    5. Builds Long-Term Trust: In fact, ethical branding creates cult-like consumers who will trust you for years to come.

    Best Practices and Alternatives: A Case for Ethics

    Let’s understand this with simple examples:

    Ethical Practice

    • Creating a Unique Logo: Rather than copying, you come up with yourown new logo.
    • Choosing An Original Brand Name: You do not use names that are similar to known brand names.
    • Respecting National Symbols: You are not disrespecting a national flag or a religious symbol in your brand.

    Unethical Practice

    • Copying a Famous Logo: Creating a logo that was close to Nike’s Swoosh and deceiving customers.
    • Using Confusing Brand Names: We’re talking about Naming your company ”Adibas” to get people to think its Adidas.
    • Disrespecting religious Values: Using sacred images or holy slogans just to gather attention without understanding their meaning.

    Ethical Guidelines under Indian Trademark Law

    There are also some ethical rules enshrined within the Trade Marks Act, 1999 in Indian law:

    • The examiners also accept that you cannot register a trademark that offends religious sentiments.
    • You cannot register anything that is immoral or against public order.
    • You cannot trademark something too alike an existing brand.

    It safeguards that trademarks are not misleading, fair, and honest.

    How Young Entrepreneurs Can Be Ethical

    If you are a young entrepreneur launching a brand, this is what you can do to remain ethical:

    • Research Before You Create: Ensure your logo or name isn’t too similar to another person’s.
    • Respect Culture and Religion: Be sensitive in how you use names, images or slogans.
    • Be Original: All of your idea’s have more impact than ones you have taken from someone else.
    • Register Your Trademark: Legally protect your creativity so that no one else can abuse it.

    It is good for all of us, and ultimately, it is good for your brand success too!

    Ethics and Global Trademark Practices

    There is a lot of emphasis on ethical trademark practices even at the international level (WIPO – World Intellectual Property Organization):

    • Equal fairness is expected from global companies.
    • Trademarks that deceive, confuse or are harmful to public interests are prohibited.
    • No matter, whether you’re a small business owner in India or a big startup dreaming international, ethics matter everywhere.

    Conclusion: Ethics = Stronger Brands

    It is not about who files first

    It’s about who plays fair.

    Ethical considerations ensure that:

    • Good businesses thrive.
    • Customers are happy.
    • Innovation continues.

    Young innovation entrepreneurs need to remember that success without values is temporary.

    But success in the realm of ethics, engenders trust, loyalty and respect — the cornerstones of any great brand.

    Thus, create your brand with creativity, guard it with trademark law and reinforce it with ethics.

    Because, after all, playing fair is the smartest business strategy!

    “Create Uniquely. Protect Legally. Grow Ethically.”

    Author Details: Aditya Krishna Gupta, 3rd year, BA LL.B. ,Jiwaji University, Gwalior 

    Reference Links:

    https://www.wipo.int/trademarks/en

    https://www.businesstoday.in/latest/corporate/story/patanjali-trademark-disputes-brand-name-legal-row-255678-2021-06-15

  • SECTION 28 OF THE TRADE MARKS ACT, 1999

    The Trade Marks Act, 1999 provides legal protection to registered trademarks, allowing owners to exclusively use and also to sue other trade marks for infringement. This exclusive right to use the registered trademark is provided under section 28 of the Trade Marks Act. 

    This article discusses the provision of section 28 of the Trade Marks Act in detail:

    Section 28(1) of the Trade Marks Act:

    Section 28(1) of the Trade Marks Act provides two rights to the Registered Proprietor:

    1. Exclusive right to use its registered trade mark: The Registered Proprietor has sole authority to use its registered trade mark.
    1. Right to seek relief in case of infringement: By virtue of exclusive right or sole authority over a registered trade mark, the Registered Proprietor has right to take legal action and seek relief against any person who is using the trade mark similar to its registered trade mark in any manner or such unauthorised use leads to confusion or deception amongst consumers or even general public.

    However, it is to be noted that such exclusive right to use a trademark is limited to specific goods or services in respect of which the trade mark obtained registration. In addition, the exclusive right granted under section 28(1) of the Trade Marks Act is not absolute and are subject to provisions of the Trade Marks Act.

    Illustration:

    A person ‘X’ got the trademark ‘Flewbee pretty’ registered for clothes and footwears. Later, ‘Y’ applied for registration of the same mark for the same goods. ‘X’ can stop ‘Y’ from using the same mark by taking legal action against him as ‘X’ have exclusive right to use the mark ‘Flewbee pretty’ for clothes and footwears by virtue of Registration under the Trade Marks Act.

    For more on trademark infringement and legal actions, visit WIPO’s Trademark Guide.

    Section 28(2) of the Trade Marks Act:

    The exclusive right conferred by section 28(1) of the Trade Marks Act to the registered proprietor to use the registered trade mark is not absolute. This exclusive right to use the registered trade mark is subject to conditions and limitations imposed on the trade mark while granting it registration.

    The conditions or limitations might be geographical, restriction on style or design of the mark, etc.

    Illustration:

    A person ‘X’ got his trademark ‘Flewbee pretty’ registered for clothes and footwears with the condition that the same shall be used only in the region of Madhya Pradesh and Maharashtra (Geographical condition). Later, ‘Y’ applied for registration of the same mark ‘Flewbee pretty’ for the same goods to be used in ‘Chandigarh’. ‘X’ cannot stop ‘Y’ from using its trade mark, as ‘X’ has exclusive right to use the trade mark ‘Flewbee pretty’ only in the region of Madhya Pradesh and Maharashtra.

    Section 28(3) of the Trade Marks Act:

    Section 28(3) of the Trade Marks Act provides that in case two or more persons have identical or similar registered trade marks, the exclusive right to use one registered trade mark does not extend against other similar registered trade marks. In simple words, it is clear that the However, the owners of such similar registered trade marks will have same rights against other persons using the trade mark similar to their registered trade mark. 

    Illustration:

    ‘X’ has registered Trade Mark ‘Flewbee pretty’ and ‘Y’ has registered trademark ‘‘Flewby pretty’’. Both the trade marks are similar, however, neither ‘X’ nor ‘Y’ can take any action against each other. But if ‘Z’ uses the mark ‘Flewbii pretty’ and the same is unregistered. Both ‘X’ and ‘Y’ will have same right to take action against ‘Z’.

    Case Law related to section 28 of the Trade Marks Act:

    P.M. Diesels Private Limited v. Thukral Mechanical Works

    In this case, it was decided that since both parties were registered proprietors of identical trade marks, although for different kinds of goods, neither the plaintiff nor the defendants had the right to file a lawsuit against the other. However, in the event that the trademark was violated by any third party, they would have the right to pursue legal action against any third party. To get in more depth about this case

  • SECTION 27 OF THE TRADE MARKS ACT, 1999

    The Trade Marks Act, 1999 provides legal protection to registered trademarks, allowing owners to exclusively use and also to sue other trade marks for infringement. Section 27 of the Trade Marks Act also provides statutory protection to unregistered trademarks by upholding common law rights through the passing-off principle. In accordance with section 27 of the Act even though an unregistered trademark cannot be protected through an infringement case, the owner may still pursue legal action if someone tries to mislead consumers or damage the company’s reputation by abusing the mark.

    Let’s discuss section 27 of the Trade Marks Act, 1999 in detail.

    Section 27(1) of the Trade Marks Act:

    According to Section 27(1) of the Trade Marks Act an infringement suit cannot be filed against an unregistered trademark i.e. the trade mark not registered under the Trade Marks Act, by any person. 

    Illustration: 

    A person ‘X’ uses a trademark ‘PickliBoo’ for confectionery goods. The trademark ‘PickliBoo’ of ‘X’ is not registered under the Trade Marks Act. If other person ‘Y’ copies the mark ‘PickliBoo’, ‘X’ cannot file an infringement suit against the copied trademark of the ‘Y’ since the mark ‘PickliBoo’ is not registered by ‘X’. 

    Section 27(2) of the Trade Marks Act:

    Section 27(2) of the Trade Marks Act protects registered as well as unregistered trade mark. This section recognises common law rights of the trade mark owner to take action against any person for passing off goods or services as the goods or services of another person. Accordingly, even if a trade mark is not registered, the owner of such trade mark can still take action under the common law principle of passing off. 

    And, for this, the owner of the unregistered trade mark must prove that the said trade mark has reputation and goodwill in the market, there has been misrepresentation in the market and owing to this the use of the other copied mark would substantially damage the business of the owner of the unregistered trade mark.

    Illustration:

    A person ‘X’ uses a trademark ‘PickliBoo’ for confectionery goods. The trademark ‘PickliBoo’ of ‘X’ is not registered under the Trade Marks Act, however, enjoys substantial goodwill and reputation in the market and have extensive market base. If other person ‘Y’ copies the mark ‘PickliBoo’, ‘X’ can file a Passing off suit against the copied trademark of the ‘Y’.

    Conclusion

    In conclusion, section 27 of the Trade Marks Act restricts legal action for infringement to registered trademarks only. Nonetheless, it recognizes passing off as a powerful remedy to protect business reputation and goodwill for unregistered trademarks.

    Learn more about common law rights and passing off at WIPO and IP India.

    Register your trademark with us starting at only Rs. 999/-

  • SECTION 21 OF THE TRADE MARKS ACT, 1999

    A trademark is a unique symbol, logo, word, design or combination of these which is capable of being distinguished from the goods and services of one person or entity from that of another person or entity. By virtue of registration of a trade mark the owner of the trade mark enjoys exclusive right to use the same. The Trade Marks Act, 1999, which grants the registered trademarks legal protection and the owner exclusive rights, also regulated process of trade marks registration in India. Section 21 of the Act provides provisions related to opposition proceedings, allowing any person to challenge the registration of a trademark before it is officially granted.

    In addition, the Trade Marks Act, 1999 also provides process for opposition to a trade mark, where any individual or entity can challenge a trademark application if they feel, it violates their rights or creates confusion in order to preserve a fair and competitive market. This process of opposing a trade mark is outline under section 21 of the Trade Marks Act.

    Here is an article that discusses the provisions of section 21 of the Trade Marks Act in brief.

    Explanation of the terms used in the article:

    1. Oppose/Opposition: to contest or to challenge a trade mark.

    2. Opponent: The person who has filed opposition or the person who is opposing the Trade Mark applied for the registration.

    3. Applicant for Registration: The person who has filed application for the registration of the Trade Mark.  4. Opportunity to be heard: Giving the parties involved in the case equal and fair chance to present their arguments before deciding the case.

    Section 21(1) of the Trade Marks Act:

    According to Section 21(1) of the Trade Marks Act, any aggrieved person can oppose a trademark. It is not necessary for a person opposing a mark to be prior applicant or registered owner of trademark. However, it is a necessary requirement that the opposition must be in writing, in a prescribed manner and be filed within 4 months from the date of advertisement or re-advertisement of an application for registration in the Trade Marks Journal. 

    Section 21(2) of the Trade Marks Act:

    Section 21(2) of the Trade Marks Act imposes a duty on the Registrar of Trade Marks to serve a copy of the notice of opposition to the Applicant for Registration (person who filed application for registration of the trade mark). Further, section 21(2) of the Act imposes duty on the Applicant for Registration to reply to the notice of opposition by sending the counterstatement to the Registrar within two months from the date on which the Applicant for registration received the copy of the Notice of opposition.

    The Applicant for Registration, in the counterstatement, must state the grounds on which he relies for his trade mark application. Failure in doing say might result in the Application being abandoned and the same will not proceeded for registration. 

    Section 21(3) of the Trade Marks Act: 

    According to section 21(3) of the Trade Marks Act, if the Applicant for Registration sends the counterstatement within the prescribed period i.e. two months from the date of receipt of notice of opposition by the Applicant for Registration, the Registrar of Trade Marks is bound to serve a copy of the same to the opponent. 

    Section 21(4) of the Trade Marks Act: 

    After the Applicant gives the counterstatement in reply to the notice of opposition, the opposition process moves on to the evidence stage. According to section 21(4) of the Trade Marks Act, both the parties to the case i.e. the opponent and the applicant for registration are required to serve evidence in support of their claims. The opponent is required to file evidence in support of notice of opposition within two months from the date he receives the copy of the counterstatement.

    And the Applicant for Registration is required to file evidence in support of trade mark Application and counterstatement within two months from the date he receives the evidence filed by the opponent. Further, this sub-section provides that if the Registrar of the Trade Marks thinks fit, it must also provide both the parties the opportunity to be heard. 

    Section 21(5) of the Trade Marks Act: 

    Section 21(5) of the Trade Marks Act provides provision related to the decision by the Registrar of the Trade Marks. Accordingly, it provides that after considering the arguments of both the parties, evidence submitted and objections raised by the opponent in the notice of opposition, the Registrar of Trade Marks must decide whether to grant the registration to the trade mark applied for registration unconditionally, impose any conditions/ limitations on the same or refuse the registration. 

    Section 21(6) of the Trade Marks Act:

    According to section 21(6) of the Trade Marks Act, if the opponent or the applicant does neither resides nor conduct its business in India after receiving of the notice of opposition or the counterstatement, the Registrar can demand security for costs of proceedings before him. In case of failure to give the security for cost of proceedings, the notice of opposition or the application, as the case may be, will be treated as abandoned.

    Section 21(7) of the Trade Marks Act: 

    According to section 21(7) of the Trade Marks Act, if any party i.e. the opponent or the applicant for registration, desires to make any correction of any error or any amendment in the notice of opposition or a counter-statement, he can request to the Registrar of Trade Marks for the same. And, if the Registrar thinks fit, he may allow such correction or amendment. 

    CONCLUSION

    In conclusion, section 21 of the Trade Marks Act provides the provisions related to the process of opposing a trade mark in India. Accordingly, the opposition can be filed by any person within four months from the date of advertisement or re-advertisement. A copy of the said notice needs to be served by the Registrar of Trade Marks to the Applicant and the Applicant is bound to file counterstatement within two months from the date of the receipt of the copy of the notice, else the trade mark Application may be deemed to be abandoned.

    After the counterstatement is given, both the parties are required to be provide evidences to support their claims. After considering such evidences, giving opportunity to be heard and objections raised by the opponent in the notice of opposition, the Registrar may either grant registration to the trade mark or refuse the same.

    For a detailed legal perspective on trademark opposition, you can visit this resource to explore case studies and official guidelines.