The companies must keep their trademark registration to protect their brand identification and ensure that their goods or services stand out from those businesses with similar or identical goods or services in the same marketplace. The process of trademark restoration is complex, but it is still essential for the business. For business owners, the value of trademarks keeps growing. Once registered, a trademark is irrevocable. Any company that registers a trademark keeps it forever. The registration of a trademark must be renewed every ten years. But the brand will always be known by the identity it gave it.
What Is A Trademark?
A trade mark is a visual indication that can be a word to identify the source of the goods, a name, device, label, numbers, or colour combination to distinguish it from comparable goods or services originated from another. The trademark has a distinguishing quality or trait that helps to identify the builder or creator of the goods or services.
The main purpose of a trademark is to avoid confusion and protect a company’s reputation by ensuring that consumers can quickly recognize and distinguish a company’s goods or services from those of competitors. Trademarks are a vital asset for every business and help to build its brand identity and defend its image in the marketplace. Registering a trademark generates an intangible asset, specifically intellectual property, on a company’s balance sheet, which gives all of the benefits associated with such assets.
A trademark symbolizes the goodwill of a business, a particular producer, or a manufacturer. Trademarks are protected from misleading consumers. Before we even see a product, trademark symbols give us vital source-identification clues that enable us to evaluate its quality. By preserving the reputation of the company that owns the mark, trademarks protect open competition. Trademarks are concerned with the market for goods and services, as opposed to copyrights, which are focused on the market for expressive ideas.
Benefits of Trademark
- Trademark helps in preserving brand identity and reputation.
- Trademark prohibits others from utilizing the brand without authorization.
- Exclusive rights to use the trademark in the marketplace are given to the trademark owner.
- Trademark registration creates a valuable asset for the business.
- A legally protected trademark can be sold or licensed to others.
- Trademark registration makes it easier to file a lawsuit for trademark infringement.
- Trademark enhances credibility and professionalism.
- Trademark helps in increasing consumer loyalty and brand recognition.
- Trademark gives the ability to enter into new markets without any fear.
- With trademark registration, protection against counterfeiting and privacy can be done.
What Do You Mean By Trademark Restoration?
The process of reinstating a trademark removed from the trademark register due to non-use or non-renewal is referred to as trademark restoration. In essence, a trademark restoration is a process that enables a trademark owner to reclaim their trademark registration and the associated legal protection. To prove that the trademark owner is qualified to have their trademark registration restored, a request must be made to the trademark office, and certain conditions must be fulfilled.
The process is for owners of the trademark who unintentionally let the trademark registration lapse or who were unable to renew it in the time they must go through this process. In India, the Trademark Act of 1999 and its corresponding rules outline the requirements for eligibility and the procedure for trademark restoration.
The Trademark Act of 1999’s Section 25(4) allows for trademark restoration. It states that the registrar shall restore a removed trademark upon payment of the prescribed fee and the prescribed form after six months and within one year of the expiration of the last registration of the removed trademark for non-payment of the prescribed fees.
Reasons Why A Trademark May Need Restoration?
There are many situations where a trademark may need restoration. The trademark owner’s failure to timely renew the trademark registration is one of the reasons for trademark restoration. In India, trademarks are registered for ten years, and the registration can be renewed for ten years each. The trademark may be removed from the trademark register if the owner does not renew it before it expires. However, a trademark can be restored if the owner applies to the restoration of the trademark within a specified time frame given for the same.
The trademark can also be restored if it was removed from the register for lack of usage. If a trademark is used continuously for five years, it may be retained by the trademark registry by the registrar in India. The trademark owner can restore the trademark, provided they can demonstrate that there was a legitimate reason for the non-use and that they intend to use the trademark in the future.
A trademark can also be required to be restored if it has been removed from the trademark register as a result of an error or omission. This can happen if the trademark was wrongly removed due to an administrative mistake or if the trademark owner needs to be adequately informed of the removal. In these circumstances, the owner can be able to restore the trademark by applying to restoration of the trademark in the trademark registry. The trademark can also be restored to claim the remedies of the infringement.
Eligibility Criteria for Trademark Restoration
The trademark owner must fulfil certain requirements in order to be eligible for trademark restoration. The following are the requirements for trademark restoration eligibility:
- The trademark must have been removed from the register due to failure to renew the registration or five years of continuous no use.
- The trademark owner has a set amount to file an application for trademark restoration. This time period should be followed.
- The owner must have adequate proof to show that they have a good cause for not renewing or using the trademark, which led to the removal of the trademark. This can be due to reasons like illness, company closure, or a lack of funding to keep the trademark active.
- The trademark owner must show an intention to use the specific trademark in the coming time. Providing a business plan or marketing strategy that uses the trademark can be one way of proving it.
- The necessary trademark restoration process should be paid for by the trademark owner.
It is essential for the trademark owner to meet these eligibility criteria in order to have a successful trademark restoration. The application for trademark restoration can only be accepted if any of these requirements are met. As a result, it is recommended that trademark owners get expert advice and make sure they satisfy all the eligibility criteria.
Documents Necessary for a Trademark Restoration
Following is the list of documents which are necessary for the trademark restoration process:
- The proof of address of the applicant
- The photo ID of the applicant
- A copy of the application of the trademark for registration
- A PAN card
- Trademark registration certificate
- Power of Attorney
- A declaration outlining the causes or justifications for failing to renew the trademark within the required time frame should also be included.
- Form TM-12: When the renewal procedure is completed on time, this application is submitted. There won’t be a need for a surcharge fee.
- Form TM-10: When renewing within six months of the expiration date, this application must be completed. In this instance, a renewal cost is applicable.
- Form TM-13: When a trademark is struck off the register of trademarks, this application must be completed. Following the registration’s expiration date, the procedure of renewal and restoration will take place, and the applicant will be charged fees for both.
Process of Trademark Restoration
- The TM-R application form must be filed by the trademark owner or authorized agent with the necessary supporting documentation and fees.
- The application must be submitted along with a statement outlining the reasons why the expired or lapsed trademark was not renewed.
- After six months from the expiration date but by one year from the proposed date, a trademark restoration application must be filed.
- After submitting the application form, the owner is expected to periodically check on the application’s status because there are a number of time-sensitive tasks that must be completed by the applicant on behalf of the trademark registry.
- The registry must follow a continual procedure of status checks, including formality checks of the application’s quality and other inspections until the application process is complete.
- The Trademark Journal, an official publication of the Trademarks Registry, announces the acceptance or denial of trademark registration applications.
- The trademark is published in the Trademark Journal if the Trademark Registrar deems the application to be appropriate.
- The third party is given a chance to contest the registration of the trademark when the application is advertised in the Trademark Journal. There is no requirement for the opposition procedure while a trademark is being renewed.
- The registrar will issue an order restoring the trademark if he is convinced that it should be done. The trademark will then be added back to the trademark registry, giving the company once more the sole right to use it.
Grounds of Refusal for Trademark Restoration in India
While the procedure permits the restoration of a lost trademark, there are some reasons why the restoration can be rejected. The following are these grounds:
- Absence of Use of the Mark
Non-use is one of the most frequent causes of trademark lapses. If the owner wants to reinstate the trademark under such circumstances, they must provide proof of usage within the prescribed time frame. The restoration might be rejected if there is not enough proof of use.
- Lack of Renewal Fees
Payment of renewal fees and any late payment fines is necessary for trademark restoration. The restoration may only be accepted if the owner pays these expenses.
- Public Interest
If the Registrar of Trademarks decides it is not in the public interest to restore a trademark, they may do so. The restoration may be rejected, for instance, if the trademark is linked to a dishonest company or a damaging product for customers.
- Disputed/Conflicting Trademarks
The restoration of the trademark may be rejected if a competing trademark was registered during the interim time between its expiration and renewal. This is due to the possibility that the competing trademark has already developed goodwill and a reputation.
- Similarity to Existing Marks
The restoration may only be accepted if the restored trademark is clear from an already-existing trademark. This is done to avoid consumer confusion and to safeguard the rights of the current trademark owner.
Risks Associated with Trademark Restoration
While trademark restoration offers the trademark owner a number of advantages, there are a few concerns to be aware of. The following are a few hazards connected to trademark restoration:
- Legal issues: Other parties that assert earlier use or registration of a comparable brand may contest trademark restoration. This may result in costly and time-consuming legal conflicts and battles.
- Loss of trademark rights: If the owner of a trademark does not comply with the requirements for eligibility or with the necessary procedures for trademark restoration, they risk permanently losing their trademark rights.
- Damage to reputation: If the restored trademark is comparable to an already-existing trademark or is connected to a bad reputation, it may harm the brand’s or company’s reputation.
- Increased competition: Market competitors may try to use similar trademarks or replicate the brand identity in order to obtain market share after trademark restoration.
- Market entry delay: The trademark restoration process can take some time and delay the launch of the good or service, which could cost money in missed sales.
Before beginning the trademark restoration process, it is crucial to carry out a careful trademark search and get legal counsel in order to reduce these dangers. To prevent legal issues and the loss of trademark rights, the trademark owner must also make sure they satisfy all eligibility requirements and follow the correct procedure for trademark restoration.
In conclusion, trademarks are essential for maintaining a company’s distinct identity and reputation. Trademark restoration in India is a procedure that enables companies to reclaim their trademark rights that may have been lost or expunged from the register. Yet, the process of trademark restoration may be complex and demanding, and there are some reasons for denial that firms need to be aware of. Trademark restoration in India is crucial for businesses to protect their brand identity and image, despite the dangers and difficulties associated. The significance of trademarks and their restoration will only rise as India develops as a centre of commerce and business.