Intellectual Property Rights are those rights which are associated with intangible property, which is owned by a person or company and protects other persons from using it without their consent. Those rights which are related to ownership of Intellectual property are known as Intellectual Property Rights.
The Universal Declaration of Human Rights (UDHR) states that “Everyone has the right to protection of the moral and material interest resulting from any scientific, literary or artistic production of which he or she is the author.” The main purpose of IPR is to reward the Human intellect by providing exclusive rights to the creators over their invention, artistic, musical or other works. IPR is an intangible property that comes into existence through human intellect. This IPR protection gives the business a competitive advantage over the other, prevents others from using it and helps to attract the clients. There are certain components in IPR namely: Copyright, Patent, Trademark, Industrial design, Geographic Indication and Trade secret.
Trade-mark is a form of Intellectual Property Law. Trade-marks include symbols, phrases, words, and designs which are distinctive and enable the public to know or identify that there is a product or commodity in that name. Trade-mark could be a sign, name, word, symbol, or logo. This sign or name or word or symbol or logo which is registered represents a company or a product. Choosing a brand name or logo is really important; in case the Trademark is a word then it should be catchy and easily understandable and pronounceable. Similarly a logo should also be eye catchy such that people will recognize it. For a Trade-mark to be registered it should be unique, it should not have similarities. In case of infringement the person whose mark is registered will be benefited in case of suit. An action against infringement of trade mark has been made a statutory right under the Trade Marks Act. But the action against passing off of trademarks has only been recognized by the Act. The Act merely lays down the procedure to be followed in such an action. The substantive part constituting the principles and the grounds for such an action still form part of the common law, from which it has been adopted.
REGISTRATION OF TRADEMARK:
Many entrepreneurs or companies or business people take a lot of time to decide their brand name or company name. Similarly it is necessary to take time and search whether their business name is unique or not. There are certain steps in registering the Trademark. Before a person registers one’s Trademark, they should undergo trademark search. This is considered as the most important step in the process.
Why Trademark search is important:
- This Trademark search enables companies to avoid using another person’s brand or Trademark. This Trademark search avoids adopting other brands. As the cost and time of obtaining a trade mark is high. So it is necessary to do Trademark search properly and effectively.
- Without conducting a proper search, one can register their mark but that could cause confusion with another similar mark. This leads to companies and individuals getting burdened with costly legal proceedings or disputes in case there is an infringement.
- In order to avoid such dispute or cost the need for Trade mark search is mandatory.
- A Trademark search report is a report that encompasses all the details about the trademark which the person is looking for. A Trademark search report is useful when a company or even an individual, or any entity is looking to gain information about availability of a trademark or whether it is unique in the market which already exists. This is the first step in the process of registering a Trademark.
- In certain cases this trademark search report can be used as evidence in trademark infringement suits.
- Therefore to gain exclusivity, the owner of the brands must register their trademark and become critically important.
Efficient conduct of Trademark search:
The controller of patents, design in Trademark introduced free trademark public search on IPO’s official website. This enabled the public to have access to the information regarding other trademarks. The result of the public search will display those trademarks that have been with the five registries i.e. Mumbai, Ahmedabad, Kolkata, New Delhi and Chennai. This search displays those which are pending or still in process.
Step 1: log in to the Indian Trademark database https://ipindia.gov.in/. Every one could use this search tool before the registration process for free.
Step 2: Then, one must select the search type. There are three search types: wordmark, Vienna and Phonetic.
Word Mark search:
This consists of searching the product name or the service name. The Word Mark search consists of the class description. Once the category is selected, they could mention the keyword in it. This word mark search can be conducted using prefix – starts with, contains with, matches with. If the person selects starts with, the search result will show the trademarks that start with the entered name. If no similar results are displayed then one could try breaking the words and search. “Contain with” will give the trademarks that contain the entered name. Lastly, match with will give all the trademarks that match exactly with the keyword.
Once the word mark and prefix option is selected, the user then needs to choose the class. There are 45 classes in total, one needs to check the class i.e. under which category this good or service falls.
This is used to generate searches for words that have similar pronunciation. There are chances for a mark to be refused because of the same or similar phonetic expression. This phonetic search is similar to word search. As there are chances of getting refused it is important to do phonetic search.
Step 3: After the categories are filled and submitted, all the results are displayed and the user can access the search report by clicking “show details”. It shows the validity of the trademark, status, date of registration and owner’s information and description.
The stage of trade mark search is a crucial stage or important stage before the registration of a person’s brand or trademark. These steps of search i.e. word search, phonetic search help to save the person or applicant from future litigation and helps to reduce litigation cost. In case the search is not made it could lead to payment of excessive litigation and infringement costs. This prior search helps us to know whether the desired brand is already in existence or not, whether they could go ahead and register their trademark without any risk. Once this basic research is done the lawyer steps in and assists their client in performing a more expansive search. One should look at other platforms such as MCA and various common law databases, therefore a trademark search report is vital, it is important that one should fully understand how the public search works.