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Significance of Trade Mark Search
With the emergence of new and diverse business opportunities and proliferation of business activities in various sectors, competition is bound to creep in. Competition has become an integral part of business and often a desirable one, since it makes us push boundaries and discover new avenues for the business. In this competitive atmosphere if any businessman has to survive he has to carve a place for himself by offering the best of his products and services and, most important, by distinguishing them from his competitors. Distinguishing ones business from others can be done in several ways. But, it is only when the public starts using your product/service do they distinguish it from your competitor’s, which of course is time consuming and is in itself, a big feat to achieve. So the question to ask is, whether it is possible to distinguish yourself and establish independent identity for your business even before your product/service actually reaches the public? The answer is –Yes, by developing and registering a Trademark. By developing and registering a trademark of your business you are creating an identity for yourself different from the rest of the market and that too, before the public starts using your products/services. Not many know that you can have your own exclusive trademark at the very formation of your entity through which you are going to sell your services/products. Developing a good Trademark and registering it, is one of the first steps in starting off your Business.
A trade mark means a mark capable of being represented graphically
and which is capable of distinguishing the goods and services of one person from those of others.
It can be in a form of a word mark, a logo or a design. It thus represents the goodwill and the reputation of the firm and is hence a very valuable asset of the business. Though not compulsory it is always advisable to get the mark registered because registration of the mark in the trade mark registry constitutes a public notice of the ownership of the mark and offers protection to the owner of the mark and gives him the right to initiate legal proceedings, including an action for infringement, against the user of a same or similar mark.
Before embarking on any business venture, whether a sole proprietorship, a partnership firm or a company, the first step is to develop a trade mark for the venture. Adoption of the trade mark needs to be done thoughtfully and with a lot of deliberation. For this purpose it is necessary to conduct a prior search for a same or similar mark in the trade mark registry. Adoption of a mark which is same or similar to that of the other may entail consequences which would not only limit themselves to waste of time and money that went into production and marketing of the product or service, but might also usher in the nuisance and expenses of litigation as well as damage to business and consumer relationships. Imagine the plight of the person who has taken all the painstaking efforts, mental, physical and financial, to get his business started. After acquiring quite a reputation in the market he foresees a bright future for his business, and, one day, he gets a legal notice demanding him to stop the operations under the given mark just because the mark bears similarity to that of the other person. To avoid such unpleasant situations it is always advisable to get a prior search done and ensure that the mark is unique and bears no resemblance to any existing mark.
Even after the mark is registered it is always advisable to conduct a periodical search in order to ensure that there is no subsequent user of a similar mark and no other person is gaining advantage out of your reputation in the market.
If the goods and services are to be sold in different countries it is necessary to search for same or similar marks in those countries too.
One thing needs to be noted that the period of use of any mark is given preference over period of application for registration. So a prior user, though not registered, can file an opposition for registration of a same or similar mark if he comes across such a mark during the conduct of search.
Under the Trade Marks Act the goods and services are broadly classified under 45 classes and every product or service has been assigned a particular class. For eg. Professional business consultancy is covered under class 35 whereas financial consultancy goes under class 36. Determination of a proper class for conducting search is very important because applying in the wrong class would make the exercise futile. For this purpose professional guidance of a legal expert having a comprehensive knowledge of intellectual property laws is always desirable. A lawyer can guide you through the entire process of registration of the mark and can also defend you in case of opposition to or refusal of registration of the mark in question.