The Power of Trademarks Date:   Thursday , June 09, 2011 What if, after spending hours coming up with the perfect business name, someone copies your name? Can you stop others 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? Yes, you can! The law of trademarks in India has been enacted to protect business owners, who register their names under the Trademarks Act 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. Trademark law in India has a twin fold goal. One is to identify the source of the product or services and second is to distinguish the products and services of one from another. What is a trademark, you may ask? A trademark is simply a name, or a logo used to distinguish your goods or services from those offered by another. A trademark is thus the name or a symbol associated with a particular product through which the consumer identifies the source of the product. 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 trademark law. It is easy enough to come up with a trademark. It could consist of words, designs, letters, slogans, symbols, or even a sound. Remember the Britannia jingle “ting, ting, ti-ting”? You might be in the dining room eating dinner when this ad comes on the bedroom TV, and you will 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. 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 supposed 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 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. 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. 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 in India. A registration not only acts as a proof that you are the owner of the trademark but also provides stronger protection to registered trademarks under the Trademarks Act. Trademark can be registered is for a lifetime as long as you keep using it and renewing it. If you have 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 may file a suit 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. 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 confusion, just showing that there is a likelihood of confusion is sufficient. In any case, a trademark becomes effective and valuable only if the owner actually uses the trademark and takes prompt action against any infringer. 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 are protected under law. The author is Partner, Raj Abhyanker P.C.