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Manual of Trade Marks

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A draft of Manual of Trade Marks Practice & Procedure Practice & Procedure भारत सरकार वाणि煍य और उ饍योग मंत्रालय कार्ाालर् महानिर्ंत्रक एकव अभिक쥍प एवं 핍र्ापार चिꅍह बौद्धिक संपदा भवन, एस .एम.रोड, एꅍटॉप हिल, म ंबई 700004 Government of India Ministry of Commerce &Industries Office of Controller General Patents, Designs & Trade Marks Bhoudhik Sampada Bhavan, S.M. Road, Antop Hill, Mumbai-400037 Page | 2 Patents/Designs/Trademark Geographical Indications General Objective of the Trade Marks Manual The draft Manual of Trade Marks Practice and Procedure is being published to bring uniformity and consistency of practice with respect to the various procedures involved in the administration of the Trade Marks Act and it is hoped that the manual will be useful for the officers of the Trade Marks Registry and the users of the system. Indeed, section 98 of the Trade Marks Act gives statutory recognition to “practice of the Trade Marks Registry” as an important aspect in determination of legal proceedings on appeal before the Appellate Board. For greater understanding and transparency, the manual attempts to explain the practice and procedure of the Trade Marks Registry by categorizing the issues outlined in three parts: underlying concepts, the requirements from the stakeholder and the office action involved as per the provisions of Trade Marks, 1999 and rules made thereunder. The manual is in the nature of a guide for the users and, if any of the statements in this document are at variance or inconsistent with the provisions of the Act or the Rules, the latter shall prevail. Wherever appropriate, reference to case laws representing decisions of Courts in India have been made to facilitate better understanding of the law. The Manual will be finalised after receipt of comments of the stakeholders on this draft and careful consideration of the same. It is expected that the manual will be updated from time to time in the light of important judgments and decisions of courts involving interpretation of the provisions of the Act and Rules. (Chaitanya Prasad) Controller General of Patent Design & Trademarks 10th March 2015 Page | 3 Index of Contents Chapter I: Filing of a Documents in Trade Mark Registry Section A: General Filing Requirement 1. How a document/s can be filed 2. Filing of documents - 2.1. Requirements as to form 2.2. Requirements as to content 3. When last Date of Filing is a Public Holiday 4. Documents must be signed and dated 4.1. Who can sign? 4.2. Applicant should supply an address for service 4.3. Fee 5. Non-compliance of filing requirements 6. Filing process Section B: Filing of Trade Mark Application (Additional Requirements) 1. Filing of Trade Mark Application 1.1. Who can file a Trade Mark Application? 1.2. Meaning of “Registered proprietor” 1.3. Identification of Proprietor before applying for a trademarks 2. Details Required from the Applicant 2.1. In case of Individual 2.2. In case of Joint owners 2.3. In case of Partnership Firm 2.4. In case of Companies 2.5. In case of Companies Government Departments 2.6. In case of Companies Quasi-Governmental undertakings 2.7. If applied as Conventional application – 2.8. Statement of Use: 2.9. Clear Specification of goods / Servicers: 3. Form of the Application: 4. Information required in the Application Form 4.1. Basis Information 4.2. Representation of Trademarks 4.3. Requirement of graphical representation Page | 4 4.4. Size of The Trademarks 4.5. Specification of Representation 4.6. In case of series Trademarks: 4.7. In case of Shape trademarks 4.8. In case of trademarks: as Combination of Colours 5. A representation that includes words in a language other than English/Hindi and/or characters other than Roman /Devnagari characters. 6. Specification of the goods and/or services for which registration is sought 6.1. Specification required as per Rule 103 6.2. Limitations on the specification. 6.3. Problems with a specification 7. Signature and Date 8. Fees: 9. Consequences of non-compliance of filing requirements 10. Data Entry 11. VIENNA Codification Chapter II: Examination of Applications filed for Registration of Trademarks Introduction and Scope 1. Identification of Nature of Application 2. Ensuring the appropriate name of the Applicant: 3. Ensuring the submission of the Power of Attorney 4. Ensuring about the applicant’s principal place of business 5. Ensuring transliteration and translation of trademark in non-English or non-Hindi characters. 6. Ensuring the consent of a person or his legal representative, if the trademark contains a name or representation of that person 7. Ensuring submission of draft regulations in case of an application for registration of a collective mark 8. Ensuring submission of draft regulations in case of an application for registration of a certification mark 9. Ensuring submission of adequate priority documents, in case of applications with priority claims 10. Examination of application as to classification of goods and services 11. Examination of application as to relative grounds for refusal of registration 12. Examination of application as to absolute grounds for refusal of application for registration 13. Draft for communication of objections to acceptance of application for registration, which are liable to be refused on absolute grounds 14. Examination of series marks Page | 5 15. Proposing appropriate condition of acceptance of the application or limitation of use of the trademark 16. Communication of Examination report to the applicant Chapter III: Post Examination Disposal of Applications Filed For Registration of Trademarks Introduction and Scope 1. Consideration of applicant’s reply to examination report 2. Treating the application as abandoned, if no reply to examination report is received 3. Show Cause Hearing 4. Publication of applications in the trademarks journal 5. Withdrawal of acceptance 6. Registration of trademarks Chapter IV: Chapter IV Tribunal Section (Opposition & Rectification Proceedings) Section A: Opposition 1. How a opposition proceeding can be started 2. Formality Requirements 3. Mode of Evidences 4. Fixation of Hearing after completion of Evidences by both the parties Section B: Rectification 1. Who may apply for Rectification of a registered Trade Marks Section C: Review of a Decision 1. Review of a decision Chapter V: Pre-Registration Amendment 1. Correction of errors or amendment in an application 2. Division of Application Chapter VI: Renewal, Assignment/Transmission, Registered User and Post Registration Changes of Registered User 1. Renewal of Trademark(s): 2. Assignment & transmission of a registered trademarks 3. Registered users: 4. Post-registration amendments: Page | 6 Chapter I: Filing of a Document in Trade Marks Registry This chapter deals with filing of a document/new application in the Trade Mark Registry for registration of a Trademark or in relation to an earlier application for registration of a trademark. This chapter is divided in to two parts i.e. Section A and Section B. Section A deals with general filing requirements for any document in trademarks registry and Section B deals with specific additional requirements related to trademark applications (TM 1, TM 2, TM 51, etc.). Section A: General Filing Requirements This section of the chapter covers the general requirements for filing any application, notice or request under the Trade Marks Act 1999 (hereinafter referred to as “the Act”) or Trade Marks Rules 2002 (hereinafter referred to as “the Rules”). Sr. General Description Relevant No. provision of the Act & Rules 1 How a document/s can be filed General A document can be filed by a person or his duly Section 18, Requirement authorized agent at the appropriate office of the Rules 4, 8 & Trade Marks Registry as defined in Rule 4 of the 15 Trade Marks Rules 2002, which includes the Head office (at Mumbai) or branch offices (at Ahmedabad, Chennai, Delhi, Kolkata) of the Registry. However, certain documents as specified under Rule 8(2) may either be filed at the Head office of the Trade Marks Registry or at the appropriate office while some documents as specified under Rule 8(2) (c) may only be filed at the Head office of the Trade Marks Registry (unless the Registrar directs otherwise). Appropriate office of the Trade Marks Registry for the purpose of filing a document is the office within the territorial jurisdiction of which the principal Page | 7 place of business of the applicant in India is situated. Detailed provisions about the appropriate office for various categories of applicants are provided in Rule 4. The document may be filed by delivery at the front office personally or by sending by post, or submitting electronically through the gateway provided in the official website i.e. ipindia.nic.in. All offices of the Trade Marks Registry are open for receipt of fee bearing documents from 10 am to 3.30 pm, on all working days. Non fee bearing documents can be filed at any time during office working hours. Electronic filing of documents can be done at all hours (24x7). 2 Filing of documents - 2.1 Requirement Requirements as to form Rules 8, from the The requirements in respect of documents as 13,14 and 15 applicant specified in the Rules are set out below: Documents must be in English or Hindi Documents must be neatly handwritten or typewritten or printed upon strong paper of good quality and of size of approximately 33 cm X 20 cm. and shall have on the left hand part thereof a margin of not less than 4 cm. Contents of the documents must be on one side of the paper in a deep permanent ink. The contents of the documents must be in large and legible characters.
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