“A corporation has no soul to redeem, no body to incarcerate.”
Looking at the nature of the corporations, the statement does sound philosophically appropriate and affirms its identity and individuality. Just the way an individual is just a silhouette without a name, a corporation is merely a ghost without a trademark. Trademark law in India has enabled various people and businesses to gain recognition among their clients. Even after such ease of access, small businessmen deter from even applying for a trademark. The only reasoning behind this comes down to the fact that the actual process and research require a lot of effort that a person can actually give.
A trademark is an intangible asset and provides exclusive rights over its usage. In India, types of a trademark can be established based on whether the mark protects the text, picture or even the sound. There are a total of six types of trademarks in India, these are:-
- Device Mark
- Sound Mark
- Color Mark
- Shape of Goods
- Three Dimensional Mark
Device marks are the trademarks that consist of a figure, a figure with text, stylized text, and different combinations of graphic designs presented in a specific arrangement and colors.
In India, the device marks category holds the highest number of applications filed as per the data obtained by MikeLegal. The data shows that device marks are preferred extensively over other types of trademarks.
Trademark search is an important aspect to check for the availability of marks before filing. By doing a robust trademark search, one can ensure that they are not infringing any existing trademark. This not just protects them from potential lawsuits but also the loss of goodwill. Because, as per law, an extremely similar mark may be termed as a duplicate or a counterfeit product.
Technology has revolutionized this process and, the legal fraternity has been really welcoming to this change. With the evolution of various platforms and tools that enable research and data management, legal processes and practices are becoming more and more efficient and swift. Trademark search has evolved from going through the gazillions of publications available in offices to searching on their digital database from the comfort of home.
Trademark Search Process
A basic trademark search can be performed at www.ipindiaonline.gov.in. Though there are certain intricacies as far as a person without proper knowledge about trademarks is considered, but the option of even looking into the database of Trademark Registry serves a purpose.
The public search tool provides for obtaining information about all kinds of trademarks. Although, the ‘Search Type’ categorizes three types of a trademark as under:
- Vienna Code
Wordmarks can be searched by using ‘wordmark’ or ‘phonetic’. However, Device marks can only be searched under the category of ‘Vienna Code’. Vienna classification is used as the devising code to establish category-based identification of various designs and patterns and to offer uniformity in the classification across the globe.
The classification under the Vienna Code facilitates the public search for device marks. The extensiveness of the code makes it a detailed and lengthy document. But because of its precision, only a few marks of similar nature can be grouped into a concise database. The Vienna Code recognizes 29 categories that thoroughly cover every possible element that can be crafted, arranged, and designed by the means of figurative creation. This helps in creating a universal classification system for images.
In order to search on IPIndia portal the arrangement decided is without any punctuations and letters. The tool does not recognize any characters other than numbers. Also, multiple sections can’t be mentioned as done in the example. Therefore the Vienna Code that will be acceptable should look like 030910, 030924 or 030924
Nice Classification makes it mandatory for the signatories of the agreement to use it as a primary or even the subsidiary classification. The national registration in signatory nations is mandatory to be based upon the Nice Classification of Goods and Services, also it is equally mandatory for the international registrations. The countries that have not signed on either of the agreements can still use the classifications with absolution or some modifications, this leverages the fact that uniformity can be maintained for international registration of marks throughout the different trademark offices.
In the simplest format, Nice Classification provides for segmentation of businesses of a varied nature into two categories, i.e. Goods and Services. Classes 1 to 34 of the Nice Classification specifies different products and product-related intricacies for example; paints, constituents, etc. From class 35 to 45, businesses are distinguished based on the nature of the service. There are 45 classes recognized under the Nice Classification.
Challenges to Trademark Search
The growing popularity of the trademark amongst all the forms of intellectual property rights has drawn the attention of all major and minor business operations. The corporations have started looking at trademarks as strategic business assets. To maintain the IP-related holdings these corporations have started to budget resources.
The magnitude of registered marks and upcoming applications is so much that it can cause considerable complications for the process of the trademark search. Another major difficulty is the available resources on the IPIndia website are primitive and archaic. The user is required to think of permutations and combinations of the mark which may exist on its own. For example, Crystal may be written as Krystal or Cryystal, then it is on the user to think of such variation. It is chellenging for any user to think of all such variations on their own. Plus, this makes this process extremely time-consuming.
Besides, in the absence of image recognition tools for device mark search, a lot of discrepancies arise. This is primarily due to the fact that all images are classified as per Vienna Codes by the Registrar himself which may result in incorrect classification of the image. Similarly, an image with 2 or more prominent elements has to be checked with all those relevant Vienna Codes to be sure about the uniqueness of the image.
Trademark search is almost a separate realm of research, it needs to be seen with a broader perspective as it is more essential than just the actuation step for a trademark. Trademarks have been applauded as a form of intellectual property as they have a wider visual appeal about a business. A precise trademark search enables an organization to protect its identity and hold exclusive ownership to promote the business.
Authored by Dharmanshu Singh
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