Legal Problems Faced in Selecting a Brand Name

Selecting Brand Name is a very important step on two counts. One Business Promotion and Legal protection.

You are going to spend a considerable amount of money on promotion of your brands. Without a brand name you cannot sell anything to your prospect clients or customers and so a Brand Name is a must. Using this brand name in commerce includes significant investment in labelling, logo design charges, logo preparation expenses and then putting the product with the wrapper containing your brand in to the distribution network of dealers. You normally would need to do it on credit and so a lot of your products with your brand name would be in the market. Very significant investments would need to be made here and every thing for the success of your business depends on the perception of your brand and how it fares in the market place.

But wait. Before you do any one of that you must ensure that your Brand or Trademark Does not put you in trouble and do not risk all your investments in time, effort and money to be made as stated above.

Before you do anything relating to commercialization of your Trademark or Brand Name you should know the basic Legal requirements for Trademarks

Legal Requirements you should know before selecting a name for your Trademark or Service Mark for using it in Commerce in India

You must know that there are two types of marks recognized by the Trademark Law all over the world to refuse an application for Registration of a Trademark

1. Identical Trademarks

2. Deceptively similar or confusingly similar Trademarks

You must be aware of at least three sections of the Indian Trademarks Act 1999 before venturing with a Brand in commerce in India.

Section 9 which deals with Absolute Grounds for Refusal of a Trademark for Registration – This provides three situations which create a legal bar against the registration of a Trademark absolutely.

Section 11 which deals with Absolute Grounds for Refusal of a Trademark Registration

Section 29 which deals with when a Registered Trademark is infringed

All these three sections require that your trademark should be a unique one and should not be similar to another trademark to create a confusion in the mind of the general public about the source of the goods or services represented by your Trademark. In other words your Trademark should stand up and shout that the products identified by the Trademark are manufactured or traded by you only and that public can assume the quality of the goods by your association with the brand. Over period of time the brand will stand on its own. This uniqueness of a Trademark is called the Distinctiveness Requirement of the Trademark in Trademark Law.

While doing trademark searches online, it is generally observed that businessmen in the same trade although coming from different places in India and speaking different languages try to acquire the same brand name. Many also apply for on line Registration of Trademarks without doing a proper trademark search and get in to Trademark Infringement proceedings and Trademark Oppositions. This is completely avoidable by doing a comprehensive Trademark Search. It is also found that about 85 to 95 per cent of the time that the mark sought to be registered is not available as it is a deceptively similar trademark.

I have formulated 10 rules to avoid the problem of rejection of a trademark name which are available as a downloadable pdf file at Brand Name Registration Rules.