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Sakshi Srivastava
| Updated: 31 Dec, 2020 | Category: Trademark

Monitarization of Trademark- Is Trademark saleable in India?

Monitarization of Trademark

In today’s world, a brand name has become an indispensable part of our life, with the growing numbers of Brand conscious people.  A trade mark also popularly known as brand name in the layman’s language is a symbol which represents a company.

It could be a word, a letter, a picture, label, device or a combination. It acts as a tool using which general public can differentiate between the goods and services offered to them. In this blog we will learn about concept of Monitarization of Trademark.

Requirements for Trademark Registration

There are certain requirements which must be undertaken by the applicant for the purpose of the Trademark registration. That includes the capability of the trademark to be represented graphically; it must not be deceptively similar to an existing trademark and not offend the sentiments of the people. And most importantly, it must indicate the goods and services that are to be offered under the proposed trademark.

It is always recommended to choose a trademark, which is easy to remember, speak and is short in length. The best trademarks are generally created by inventing the words or forming a unique geometrical pattern.

What Role does a Trademark Play?

The role of Trademark are as follows-

  • A trademark allows a person to identify and differentiate the goods and services from other existing brands.
  • A renowned trademark increases the credibility of a brand, and allows the customer to not to worry about compromising in the quality of the goods and services offered.

A trademark can be registered on any person’s name who claims to be the original inventor of the trademark and it is regulated by the Trademark Act, 1999. A formal procedure is required to be followed for the purpose of registration of a trademark. There are numerous benefits which can be utilised by the registered owner of a Trademark, hence, it is always suggested to get the trademark registered.

Whether there is a Concept of Monitarization of Trademark in India or not?

The answer to this question is, yes, there is a concept of monitarization of trademark in India. Trademark is a movable property, even when it can neither be seen nor touched. It comes under an intellectual property of a person and is capable of being assigned to a third party, however, it comes with certain restrictions.

Proper Valuation of a Trademark before Selling

A trademark is a movable as well as intangible assets. A proper estimate or valuation is essential for monitarization of Trademark at its justified price. The evaluation process consists of direct as well as indirect methods. The direct method of calculation is straightforward. Now, the investment for creating and promoting the trademark will bedeliberated. In the indirect process, the calculation is on other aspects such as brand awareness and image among individuals. 

Let us discuss in brief, some of the fundamental approaches for proper valuation of a mark before Trademark Assignment-

proper valuation of a mark before Trademark Assignment

Estimating the Brand Value

The foremost step in selling a trademark is to estimate its value. There are different direct and indirect processes to evaluate the value of a trademark.

Cost Approach

It is a direct process in which the value of a brand is estimated as per the total cost invested in the formation of the brand name in the first place.

Market Based Approach

It is an approach under which, the highest amount on which a buyer is willing to purchase the company is considered.

Replacement Cost Method

Under this method, the brand keeps the investment and expenditure which is of utmost to replace the existing brand with a new one which has equivalent utility to the company.

Brand Sale Comparable Approach

Though, this method is not applicable on all the brands, but it helps to determine the brand value based upon the recent transaction that involves the brand with similar valuation in similar industry. Under this approach, the view of a third non-related party is taken into consideration.

Method used for Monitarization of Trademark

The owner or proprietor of a trademark can sell his intellectual property to any individual or a legal entity of his choice by following the method of trademark assignment. Upon following the procedure of assignment, the owner can assign his trademark along with its rights to the individual or any legal entity.

The protocol which is required to be followed for the purpose of trademark assignment governs as per the provisions mentioned in the Trade Marks Act, 1999.

In the procedure of trademark assignment under the Trade Marks Act 1999[1], the owner or the proprietor who is willing to sell his trademark is labelled as the assignor, whereas, the other party, the potential buyer of the trademark who look forward to acquire the trademark is called the assignee.

Initiation of the Process for Monitarization of Trademark

In order to initiate the process of trademark assignment, either the seller (assignor) or the buyer (assignee) is required to file an application regarding the same. The procedure of transferring the ownership of trademark from the buyer to the seller is usually finished within six to twelve months, provided that, there must be successful verification of the credentials. 

In the matter, where the ownership of a registered trademark is supposed to be transferred, then such assignments are required to be recorded with the Trademark Registrar.

Various Types of Monitarization of Trademark

The type of Monitarization of Trademark depends upon the discretion of the owner of the brand name. The various forms of trademark assignments are given below:

Types of Monitarization of Trademark

Complete Assignment

Under this, the rights of a trademark are completely transferred from the assignor to the assignee. It must be noticed that only the trademark rights are transferred not the company’s rights.

Limited Assignment

As it is suggested by the name, only limited rights of a trademark are transferred from the assignor to the assignee.

Assignment with Compassion

Under this, the seller of the trademark not only transfers the trademark rights but assigns the market value of the trademark. The buyer of the trademark has the whole rights and value of the trademark.

Assignment without Goodwill

This form of assignment has been approved in India, but it is generally not permitted in other countries. Under the assignment without the goodwill, both the assignor and the assignee have rights on the trademark for different goods and services.

Certain Restrictions on Monitarization of Trademark

There are certain situations under which the assignment of a trademark is off limits as per the provisions of the Trademark Act, 1999. This restriction is strictly imposed on the situation which may create confusion among the public with a mediocre mind-set if the trademark is sold or bought. The restriction is applicable on following mentioned situation:-

  1. When the transfer of the rights of a trademark allows more than one legal entity to own the exclusive rights of the same goods and services.
  2. A transfer in which, similar trademark could be used by different people in the different of the parts of the country at the same time.

Conclusion

The Trademark assignment process is not a complex one and does not even require tons of paperwork. Other than that, the trademark assignment provides a chance to the unregistered trademarks to unleash their full potential. Monitarization of Trademark gives a chance to use a trademark without trademark registration procedure. Contact our CorpBiz Professionals for hassle free Trademark Assignment.

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Sakshi Srivastava

Sakshi has pursued B.B.A.LL.B.(IPR Hons.). She is an avid reader and is keen to gather and share her knowledge on the subjects relating to IPR, Company Law and GST. Priorly she has worked as a legal researcher and vide her articles she aims at improving the core knowledge of the subjects to the masses.

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