TRADEMARK APPLICATION

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What is a Trademark?

Trademark means any sign capable of being represented graphically which is capable of distinguishing goods or services of one undertaking from those of other undertakings. Sign included are any letter, word, name, signature, numeral, device, brand, heading, label, ticket, shape of goods or their packaging, color, sound, scent, hologram, positioning, sequence of motion or any combination thereof.

As mentioned by IPO, there are two type of trademark:

  1. Collective mark – A collective mark shall be a sign distinguishing the goods or services of members of the association which is the proprietor of the collective mark from those of other undertakings.
  2. Certification Mark– A certification mark shall be a sign indicating that the goods or services in connection with which it shall be used are certified by the proprietor of the mark in respect of origin, material, mode of manufacture of goods or performance of services, quality, accuracy or other characteristics.

However, there are non-registrable trade mark which are:

  1. Prohibited Marks – If the use of which is likely to confuse or deceive the public or contrary to law.
  2. Scandalous or Offensive Matter – If it contains or comprises any scandalous or offensive matter or would not otherwise be entitled to protection in any court of law.
  3. Prejudicial to the Interest or Security of the Nation – Registrar bears the responsibility of determining the trade mark, whether it might be prejudicial to the interest or security of the nation. It may be that a mark contains an inflammatory statement or words.

In order to make an application, an application may be made in a single application listing goods or services belonging to several classes of classification to the Registrar. An application for the registration of trademark or the registration of trademark may, upon the request of the applicant or registered proprietor, be divided into two or more separate applications for the registration or registration of trademark. Two or more separate applications for registration of trademark or registration of trademark may, upon the request of the applicant or registered proprietor, be merged into one application for registration of trademark or one registration of trademark.

Applicant also first must identify the classification of goods and services as there are 34 and 11 classification respectively.

However, applicant is not encouraged to list or claim the entire class heading of each class of goods or services in the application form. Class headings only serve as general indications of the type of goods or services and may not cover all the goods or services in the class. Applicants should itemize the specification of goods or services of their interest in the application.

WHY TRADEMARK IS IMPORTANT FOR YOU?

Why is registration of trademark necessary?

You would have sole and exclusive control of the trademark once you register it. You will also sue someone who uses the unregistered trademark under the common law tort of selling off if they do so. The following must be proven to the court in order to win a passing off action:

  • The Plaintiff has goodwill or credibility associated with the products or services due to the trademark;
  • The Defendant has misrepresented to the public, causing or likely to cause the public to assume that the Defendant’s goods or services are the Plaintiff’s goods or services; and
  • The complainant must demonstrate that he has sustained or is liable to suffer harm as a result of the defendant’s misrepresentation in a quia timet action.

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