1. It Is Difficult to Correctly Register a Trademark

Many startups put off registering a trademark because they think it is a difficult process. But the longer you leave trademarking your intellectual property, the more you leave your business’s name, logo, and designs open to being ripped off by competitors. The best time to trademark things like your business name and logo is before you even launch your business. Anyway, registering a trademark is not as challenging as it may first appear. However, you do need to ensure you register trademarks correctly. So, the best option is to hire a trademark registration company in which experienced trademark attorneys do a search report on your trademark possibilities and then process your application with the Trademark Office for you, handling all of the necessary formalities along the way.

2. You Can Never Use a Competitor’s Trademarks

It is dangerous to use other businesses’ trademarks in your marketing materials because you do not want to end up infringing on those trademarks and facing a lawsuit. However, it is just as damaging to not fully understand how and when you are able to use competitor’s trademarked names, logos, and slogans. There are certain times when you can indeed use those in your marketing content without infringing on your competitor’s intellectual property. The key is to know the precise legal rules. Typically, you can use competitors’ trademarks to fairly and accurately describe or compare their products or services with your own and others. That can be an effective marketing tool because you get to highlight your brand’s attributes in comparison with your competitors. Approach comparative advertising with caution, though. Always make sure you know what you are legally allowed to do and not do. It is a good idea to consult with a trademark attorney to ensure you do not make any dangerous mistakes.

3. You Do Not Have to Stick to Registered Classes

When your trademark is registered it will fall into certain categories. For example, you could file a trademark, for a word or logo, to be used in the class that covers clothing items like hats, shorts, T-shirts, and pants. But if you do not use your trademark in the way it was registered, your trademark could face full or partial cancellation. So, if you only use your trademark on hats but not the other items under which the mark is registered, you could run into problems. You should always use the trademark precisely as it is registered for all goods or services listed in your original trademark registration.

4. You Do Not Need to Do Anything After Your Trademark Is Registered

A common misconception is that once you have registered a trademark, you never need to keep an eye on competitors potentially using your names and designs because the Trademark Office will prevent others from using similar trademarks. The truth is, just because you have trademarked things like your business name and logo, it does not mean competitors will not use them. They are less likely to use them because they are trademarked but rip-offs are still rife. It is up to you to search for similar designs. If you find any that are infringing on your trademark, you will be able to file a lawsuit.

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What Is a Trademark?

A trademark falls under “intellectual property,” which is also the umbrella of patent and copyright. It has unique characteristics that employ to your product, so consumers can easily recognize it.

As contrary to popular belief, it does not only apply to international brands. Now more than ever, small business owners should protect their intellectual property rights by applying for a trademark. There are many good reasons why small businesses needs it. Let’s find out!

Importance of  Trademark to Small Businesses

1. Official Registration for Your Small Business

Regardless of the size of your business, you need to ensure that you have a grasp of trademark information for small businesses which will help you prevent major facing problems in the future. Trademark litigation lawsuits are expensive and complicated, which can deplete time, effort, and resources. If you don’t want to undergo through the stress and hassle down the road, better start considering getting one for your small business.

2. Brand Identity Protection

As early as conception, you protect your brand identity, so you solely and exclusively use any concept, packaging, or logo you create because you own it or have a trademark for it.

The reasons why you need to create one and a business branding are as follows:

• Your business gains instant brand recognition.
• Create a harder to copy distinct logo because trademarking requires strict design.
• Your trademark logo, symbols, or branding becomes a core foundation and image of your business.
• It will stop your competitors from imitating your brand.
• It offers some degree of protection against reputation-damaging copycats. Similar to protecting consumer data, you also need to protect your intellectual property rights.

3. Use a Trademark Designation for Your Products

The Trademark or Service Mark designation notify other businesses about the common law claim of your small business to those brand names, symbols, or logos. It means that your competitors cannot steal those from your small business, which are the results of your brand building and hard work.

Steps in Getting a Trademark

While many recognize the value of a trademark in a business, there are still some small business owners who are deterred from getting one because of the notion that the process is complicated. In reality, the process of obtaining it is straightforward.

Here are the steps:

1. Do Your Homework

Research about your prospective trademark item. You can check the searchable database of the United States Patent and Trademark Office or USPTO to confirm if there is any similar idea trademarked by other businesses.

2. Apply for a Trademark for Your Business

Apply for federal trademark protection through the website of USPTO for an online application. At this point of your application process, a fee shall be assessed. When filing for a trademark with the USPTO and U.S. Patent, the requirements include:

• The trademark should be applied for your name as the small business owner.
• You need to specify the type of business entity (e.g., individual or corporation) and your national citizenship.
• The application should be based on the actual use or the real intent of use of the trademark.
• Include all the products you are selling with the trademark as well as the services that are also used. It should be in good faith that you are planning to use the trademark in commerce.

3. Wait for Approval

You will have exclusive legal rights once your application has been approved. Of course, you can use the symbol for a registered trademark. If ever that your application is denied, you can appeal the process to USPTO.

Conclusion

Your small business is the start of your journey as an entrepreneur. That’s why you need to make it right decision the first time. By complying and taking appropriate steps such as trademarking, you are protecting your business and yourself from the possible issues and pitfalls of the industry.

The post Why Small Businesses Need a Trademark: It’s Importance And Steps In Getting One appeared first on Legal Desire Media and Insights.

In India, trademarks are certified by the Controller General of Patents Designs and Trademarks, Ministry of Commerce and Industry, Government of India. Trademarks having the registration under the Trademark Act, 1999 grant the owners with the pivotal right of suing for damages inflicted due to infringing. The validity of a trademark is for a term of ten years after which an application for renewing is required to be filed for the succeeding ten years.

Why should one register a Trademark?

• Assurance of a protection by legal means : Only holders of the registered trademarks can be permitted from taking actions or suing for the damages incurred for infringing the trademark which diversely cannot be enforced if the trademark remains unregistered.
• Bearing an identity that is unique:Filing a trademark builds an identity and a brand which is exclusive and limited to one’s goods or services. As such various competitors in the market will be refrained from using the trademark for other analogous goods or services.
• Formation of an asset:Filing of trademark establishes an intellectual property which becomes a well known asset for the concerned organisation due to its intangible nature. A trademark that has been registered is often contemplated as a right which can be used for selling, franchising or for commercial contract purposes.
• Goodwill:The trademarks that have been registered create an impression of goodwill, quality into the customer’s mind which becomes favourable and exclusive for one’s business.
• Universal Trademark Filing:A trademark that has been filed in India could be used as base to file trademark in various other countries as well which is not only confined to the citizens of the country but also open to foreigners and other international entities for filing in India.

What documents are necessary for registering a Trademark? 

• The proof of identity: Passports, driving license, aadhaar cards, etc are required for filing an application for trademark. In case of a partnership deed/incorporation certificate is required for the legal entities / bodies which have been registered.
• A Logo which has a catchy Tagline: A logo is not necessary when there are words. Logo should be either in black or white in colour consisting of same words as mentioned in the trademark application.
• Form-48 and a User Affidavit: The Form-48permits authority to the Attorney to file an application on behalf of someone with trademark Registrar. An affidavit must be submitted to claim a previous application that had been made upon.

How much amount is charged to register a Trademark?
For individuals /Start-Ups/ Small and Medium Enterprises the basic cost revolves around Rs.4500 while Rs.9000 is charged for others being a subject to the mark and class.

Steps involved for Trademark registration in India:
Selection of a trademark: One of the Herculean tasks for trademark owner lies in selecting a trademark as that in the long run turns into a brand while making changes in later stage becomes very difficult.
Classification of the goods and services: This becomes immensely important for protection of a trademark for the right goods and services which are being offered under the trademark name.
Searching for a trademark: Involves searching of miscellaneous office records of trademark to find similar marks in the same category /classes that are chosen by an individual for checking if somebody earlier had applied .Searching on internet is highly suggestible with due importance to be given to the jurisdictions .
Filing the application Professionals may charge an amount ranging from Rs.999 and above per trademark per class + Rs.4500/9000 as standard fees per mark per class.
Objections when raised by the office of trademark: While examining an application for registering the trademark, same must be responded and complied in a month from the date of such objection.
Advertising of application in journals: This becomes significant as anytime opposition might arise from third parties claiming the disputed mark as being their mark. The proceedings involved are lengthy and expensive which could be ignored if suitable strategies are followed before filing of the application.
Registration: If there is no opposition within 4 months from the date of advertisement, registration can be granted that has a validity of 10 years from the date of the application.
Renewing of trademark in India: It can be filed six months before the date of expiration.

Renowned example of trademarks:
Coca cola and Pepsi are two distinct trademarks despite belonging to the same industry (beverages) that recognizes the source / origin of the goods and quality indication.

Who can apply for trademark?
Any individual/company/owner/ legal entity who claim to be owner of a trademark can apply. The trademark application should be filed within few days while can start the use of “TM” symbol, all the formalities pertaining to the registration takes around eighteen to twenty-four months.

Functions of a trademark:
• Identification of service/ product / source.
• Provides guarantee to the quality.
• Helps in advertising of the service/product.

Thus, one’s own brand is a valuable asset for its business hence one ought to dedicate enough time to choose upon an appropriate service provider which then submits the list of the trademark that have been registered from amongst the one can verify followed by cross review various application numbers at the website through computerisation of numbers.

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Artificial Intelligence and the Legal Arena

Artificial Intelligence can augur the creation of legal documents and formats based upon raw data. It can also provide strategic guidance in case histories by going through the old case records and determining for example what are the cases in which settlement/compromise can be arrived at.  It spots designs, patterns and trends in raw data and then describes those findings in natural language.  For instance AI will replace, say cross examining a driver involved in an accident by a lawyer in the conventional format  by cross examination being conducted by an algorithm ie. an expert on the subject, through a questionnaire. Applying similar technique, legal documents can be produced, and such systems could also carry out many tasks given to the paralegals and junior associates.

Intellectual Property Rights and Artificial Intelligence

Intellectual Property Rights as a tool deals with the entire gamut of copyright, trademarks, patents and industrial design. Herein our focus will be on copyright, trademarks and patents.

Copyright or (Author’s right) encapsulates the rights creators have over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture and films to computer programs, databases , technical drawings and the like.

A  Copyright protects the Expression of an Idea and Artistic Works. The Copyright aspect would protect the following  realms of Artificial Intelligence namely compilation of data, source code, data sets as programmed into the AI device, as all of these fall within the ambit of “Artistic Works”.  Copyrights also have the potential to protect machine originated work such as new music. The lacunae herein are that most copyright statutes (internationally) do not clearly define who owns the machine generated work(the AI device or the feeder of the algorithm). This could be ascribed as a drawback owing to Artificial Intelligence, as Artificial Intelligence devices are programmed to work without human intervention, just by feeding algorithms into the device.

A Trademark is unique and is defined as a sign to identify the source origin of goods and services. It may consist of a combination of letter, words, sounds or logos that distinguish one company’s goods and services from another. A strong trademark adoption will propel Artificial Intelligence Companies to differentiate their products from competitors and act as a safety shield from passing off or infringement of trademarks.

In contradistinction Artificial Intelligence can propel trademark searches. In the usual scheme of things most of the present trademark search methodologies are antique.  Trademark Public Search Government sites are clogged taking hours to throw up search results. Software search tools like MikeTM Search which are a product of AI conduct optimal and faster searches.

Patents – A patent is an exclusive right granted for an invention for a certain time limit which is a product or a process that provides in general, a new way of doing something, or offers a new technical solution to a problem. In order to obtain patent technical information about the invention must be disclosed to the public in a patent application. Patents regarding Artificial Intelligence mechanisms are difficult to obtain. The date on which the patent is filed assumes prime importance as an early “Priority date is most vital in view of the principle “First to file the Patent ”.Practical implementation gives a fillip to patentability- For example AI tools treating a physical object such as a medical device.

Cyber Laws and Artificial Intelligence

Application of Artificial Intelligence is potential fodder for hackers in the cyber world. By dint of AI, hackers would be able to attack and explore victim’s networks which are generally labour intensive tasks. AI mechanisms when planted are capable of serenading the victims multiple accounts thus eliciting all personal details. There would thus be a rise in malware attacks and security incidents across public cloud platforms.

Artificial Intelligence in legal operations

(A)Legal Research– Artificial Intelligence may augment legal research by providing for it in a far more systematic manner. It may further be able to predict the outcomes of litigation based upon the previous case study data.

(B) Contract Due Diligence– AI can act as a marker to carve out the dates and deadlines in a contract to alert the parties concerned to perform the contract on time.

(C) Legal Document Generation and Review– AI can come up with certain sections that are important clauses necessarily to be incorporated for contracts in the concerned jurisdictions.

Drawbacks

AI has certain drawbacks with legal implications. AI for instance is not yet applicable to financial transactions. The lending of money to another on one’s behalf poses problems as to how will debt repayment take place( who will be the lender, the AI device carrying out the transaction or the lender in person who owns the money).

Another case in point is that of automated machines. Automated machines do not have a check in place for speeding. According to California law the designer of the system will be liable in event of an accident. On the flipside a ‘Chatbot’ has been designed in the U.S for instructing drivers as to curbing parking violations.

Conclusion

An artificial intelligence technique called natural language processing has proved useful in scanning and predicting what documents will be relevant to a case, for example. Yet other lawyers’ tasks, like advising clients, writing legal briefs, negotiating and appearing in court, seem beyond the reach of computerization, for a while. Highly paid lawyers will spend their time on work on the upper rungs of the legal task ladder. Other legal services will be performed by nonlawyers — the legal equivalent of nurse practitioners — or by technology.

Author: SPITI SARKAR

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1. To Prevent infringement of your Trademark.

The problem of someone else registering your brand in China is a common one, because of China’s first to file trade mark registration system. The main reasons a person may register your trade mark in China includes:

• a genuine need to use that trade mark for their products or services;
• intent to produce replicas of your products;
• ill-intent to sell you the right to use the trade mark.

The one exception to the first to file rule is that if you need to prove that someone else done trade mark registration in bad faith. In very rare instances, one might be able to recover the trade mark which will be very costly and time consuming.

China is also leader in e-commerce and you need to take down infringing listings on Chinese e-commerce sites. In order to remove the infringing listing from the domestic website of China you require a Chinese Trade Mark Registration. If you are having a trademark registration in other countries such as India, United States or some other jurisdiction outside the territory of China, you are only able to submit takedown requests to foreign-facing sites like Alibaba but not domestic websites.

It is submitted as per Chinese law that most of e-commerce or social networking sites require a Chinese trademark registration and every site will take action if you have Chinese trademark else the infringing listing will continue to be listed there.

So the question is that Are you really wanting to spend your time arguing with these website? or After the knowing this fact now do you really want to take the risk of having someone selling products with your name on them all around the world or in China?

2. To start selling or for future selling plans in China

Even though you’re not selling goods in China, you might want to sell in future. As we all know without any doubts that China is the biggest market in the world, with monstrous market with a rapidly growing base of consumer class.

As per current Chinese IP Law governing trademark application of foreign, it takes at least a year from the trademark application date to the registration date. So, you can start you application now as having a trademark registration in hand will make it easy for you to enter the Chinese market gates.

Chinese law does not recognize trademarks by common-law practice and only has minimal recognition for “famous and prior user” marks and if you want to sell goods in China without having trademark registration, then there is almost absolute chance someone else will register your trademark in China and come after you for trademark infringement. So it is recommended that you should register your trademarks and register the Chinese-language version of your trademarks, too.

3. To get Chinese Customs seize goods infringing your trademark.

The only way to have Chinese Customs seize infringing goods is to get your trademark registered in China, If you want to have counterfeit goods seized by Chinese Customs. A foreign trademark has no relevance in China with few exceptions and it means nothing to Chinese Customs. So, it’s another reason to have your trademark registered in China.

4. To invoke your Trademark Rights and sue in court for Infringement in China

You will be laughed out of court, If you attempt to file a lawsuit in China for trademark infringement without owning the trademark in China.

To invoke your trademark rights and file a lawsuit in China against notorious counterfeiters you need Chinese Trademark else you do not have any trademark rights in China. Surprisingly fact is that how often Chinese IP lawyers are hired to sue Chinese company for the trademark infringement, just to discover that the company has no China trademark and hence there’s no basis for a claim of trademark infringement.

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