What is a Trademark?
Under the Trade Marks Act, 1999, a trade mark is a mark capable of distinguishing the goods or services of one person from those of others. It may include the shape of goods, their packaging, and combinations of colours. A "mark" can be a device, brand, heading, label, ticket, name, signature, word, letter, numeral, or any combination of these.
Courts generally expect a trade mark to be distinctive. In Neon Laboratories Ltd. v. Medical Technologies Ltd. (2016), the Supreme Court observed that a mark should normally be a new creation. An existing word can also qualify, provided it does not describe the product and is not merely a term of praise. Likewise, in Tarai Foods Ltd. v. CCE (2007), a descriptive phrase like "new improved quick frozen french fries" was held not to be a brand name. Descriptive marks may still be registered if they have acquired distinctiveness through long and substantial use (Section 9(1) proviso).
The shape of goods can also be protected, as the Bombay High Court recognised in Gorbatschow Wodka KG v. John Distilleries Ltd. (2011), subject to the exclusions in Section 9(3).
Why Register a Trademark in India?
Any individual, proprietor, firm, or company that uses a distinctive name, logo, or other mark in business should consider registering it, because an unregistered mark is easy for others to copy. Registration under the Trade Marks Act, 1999, offers several advantages:
- Exclusive legal rights: Registration gives the owner the exclusive right to use the trade mark for the goods or services it is registered for, as long as the registration is valid. This allows the owner to obtain relief against infringement.
- Use of the ® symbol: Once the mark is registered, the owner may use ® beside the brand name or logo. This signals credibility, builds trust among customers and helps the brand stand out in the market. Using ® before registration is an offence under Section 107, so applicants should use ™ until then.
- A valuable business asset: A registered trademark can be assigned, licensed, or franchised, giving the owner a source of income and adding to the value of the business.
- Stronger, India-wide protection: An unregistered mark is not left without remedy, as the owner can bring a passing-off action. However, the owner must prove goodwill, misrepresentation, and damage, and protection is generally limited to where the mark has a reputation. A registered mark gives a statutory right to sue for infringement across India, without the need to prove reputation.
- Base for global protection: An Indian registration can serve as the basis for filing abroad under the Madrid Protocol.
What is a Trademark Search?
A trade mark search is a check of the Register of Trade Marks, and of marks in the market, to find out whether an identical or similar mark already exists for the same or related goods or services. It should be done before filing.
The Trade Marks Registry keeps the Register, along with indexes of registered marks and of marks with pending applications, and these are open to public inspection (Sections 6, 147, and 148).
Why it matters: under Section 11(1), a mark cannot be registered if it matches or closely resembles an earlier mark for identical or similar goods or services, where confusion is likely, including association with the earlier mark. "Earlier trade mark" includes a pending application with an earlier filing date. Section 11(2) also protects well-known marks, even for dissimilar goods. A conflicting mark can lead to refusal, opposition by the earlier owner within four months of advertisement (Section 21), or, later, an infringement claim (Section 29).
What a good search covers:
- Identical and phonetically similar words (courts have examined near-identical spellings such as "Nandini" and "Nandhini")
- Logos and device marks
- Translations and transliterations
- The relevant class and related classes
Limits: the Registry search shows only registered and applied-for marks. A prior user of an unregistered mark can still stop you through passing off (Sections 11(3), 27(2), and 34). So a complete search should also look at the market, domain names, and business names.
Applicants can also ask the Registrar for preliminary advice under Section 133, but that advice is on whether the mark is distinctive, not on conflicts with earlier marks. A search is therefore a risk assessment, not a guarantee of registration.
What are Trademark Classes?
Trade marks are registered for specific goods and services, which are grouped into classes under the International (Nice) Classification. There are 45 classes: 1 to 34 for goods and 35 to 45 for services. The Registrar classifies goods and services accordingly, and the Registrar's decision on the class is final (Section 7).
A single application can cover several classes, with the fee payable for each class (Section 18(2)).
Why classes matter: registration gives exclusive rights only for the goods or services for which the mark is registered (Section 28(1)). Courts have made it clear that registration in one class does not extend to another, and that registration in a class does not give a monopoly over every product in that class.
Classes are administrative groupings, not tests of similarity. Goods in different classes can still be treated as similar or associated (Section 2(3)), so a conflict can arise across classes.
Some common classes include:
Class 3: Cosmetics and cleaning products
Most everyday beauty, personal care, and cleaning products that are not intended for medical use fall under Class 3. It includes products such as cosmetics, perfumes, essential oils, soaps, and shampoos.
If you sell skincare, haircare, beauty, or household cleaning products, this is usually one of the classes to look at. However, products such as medicated shampoos or other preparations intended for medical use may fall under Class 5 instead.
Class 5: Pharmaceuticals and health products
Class 5 mainly covers medicines and products intended for medical use, including pharmaceutical and veterinary preparations, dietary supplements, baby food, disinfectants, medical dressings, and certain sanitary products.
There is also an important point for pharma businesses when choosing a brand name. Section 13 of the Trade Marks Act, 1999 restricts the registration of commonly used and accepted names of single chemical elements or compounds, as well as WHO-declared International Nonproprietary Names (INNs) and names deceptively similar to them, in the situations covered by the law. So, a pharma brand should check the name carefully before filing.
Class 25: Clothing, footwear, and headwear
Class 25 is intended for clothing, footwear, and headwear. That includes items such as shirts, trousers, dresses, shoes, caps, scarves, and belts when they are used as clothing.
This class is commonly used by fashion brands, clothing manufacturers, and D2C apparel businesses. One thing to remember is that the products and the business of selling those products are treated differently for trademark purposes. Retail and wholesale services may fall under Class 35, so a business involved in both manufacturing and qualifying retail or wholesale services may look at both classes.
Class 30: Foods, confectionery, and certain beverages
Class 30 covers a wide range of food products consumed daily, including tea, coffee, cocoa, rice, flour, pasta, bread, biscuits, confectionery, chocolate, sugar, honey, spices, sauces, and condiments.
This mainly concerns packaged food companies, bakeries, confectionery brands, and snack businesses. While this class covers a wide range of food items, not every food or drink product falls under it. Meat, dairy products, edible oils, and preserved fruits and vegetables generally fall under Class 29, while certain non-alcoholic drinks are covered under Class 32. Restaurants and cafés, meanwhile, provide services under Class 43.
Class 35: Advertising, business, and retail services
Class 35 covers areas such as advertising, marketing, business management, administration, office functions, and qualifying retail or wholesale services.
The class is relevant to businesses such as e-commerce platforms, marketing agencies, consulting firms, and franchises. For an online store, for example, Class 35 can protect the qualifying retail service, but it does not replace the class covering the products themselves. A business selling its own branded products may therefore also need protection in the relevant goods class.
Class 42: Technology and software services
Class 42 covers a broad range of technology-related services. These include software development, IT and technology consulting, SaaS, PaaS, cloud computing, and other scientific or technological services.
It is particularly relevant to software companies, SaaS businesses, tech startups, and companies that provide web or app development services. The important distinction is between software offered as a service and software that is downloaded or sold as a product. Downloadable software generally falls under Class 9, while SaaS and similar services fall under Class 42. Depending on the business model, a company may therefore need protection in one or both classes.
| Class | Covers | Typical applicant |
|---|---|---|
| 3 | Cosmetics, cleaning products | Beauty and personal care brands |
| 5 | Pharma, supplements | Pharma and health companies |
| 25 | Clothing, footwear | Fashion and apparel brands |
| 30 | Staple foods, tea, coffee | Food and bakery brands |
| 35 | Advertising, retail | E-commerce, agencies |
| 42 | IT and software services | Tech startups |
Trademark Registration Process in India: Step by Step
Step 1: Search
Perform a trademark search before filing (see What is a Trademark Search? above).
Step 2: Choose the class and applicant category
Select the class or classes for your goods or services. One application can cover several classes, with a fee for each (Section 18(2)).
Step 3: File Form TM-A
Any person claiming to be the proprietor of a mark that is used or proposed to be used can apply (Section 18(1)). You do not need to have started using the mark. The application is filed with the Trade Marks Registry office whose territorial jurisdiction covers the applicant's principal place of business in India (Section 18(3)). The government fee for e-filing is ₹4,500 per class for an individual, startup, or small enterprise and ₹9,000 per class for other applicants. Physical filing costs more. Your filing date matters because a registered mark is deemed registered from the date of application (Section 23(1)).
Step 4: Examination
The application is examined by the Registrar, after which it can be accepted, accepted with conditions, or refused. A refusal or conditional acceptance must follow the procedure in Section 18(4) and 18(5).
The usual objections are:
- Absolute grounds (Section 9): the mark lacks distinctiveness, is descriptive or customary, or is likely to deceive.
- Relative grounds (Section 11): the mark is similar to an earlier mark.
You can reply in writing and attend a hearing if one is fixed.
Step 5: Publication
An accepted application is advertised in the Trade Marks Journal (Section 20). The Registrar may also advertise before acceptance in certain cases.
Step 6: Opposition period
Any person may file a notice of opposition within four months of advertisement (Section 21(1)). The applicant must file a counter-statement within two months of receiving the notice; if the applicant does not, the application is deemed abandoned (Section 21(2)). Both sides then file evidence, and the Registrar hears them and decides (Section 21(4) and 21(5)). The Registrar may also withdraw an acceptance given in error before registration (Section 19).
Step 7: Registration
If there is no opposition, or it is decided in your favour, the Registrar registers the mark and issues a certificate under the Registry's seal (Section 23). You may then use the ® symbol. Until then, use ™.
Step 8: Renewal
Registration lasts 10 years from the date of application and may be renewed for further periods of 10 years (Section 25). If you miss the deadline, you have a six-month window to renew with a surcharge. After that, the mark can be removed and restored within the statutory period on payment of the prescribed fee (Section 25(3) and 25(4)).
Foreign filings
An Indian application can support international filing under the Madrid Protocol (Section 36D). A Convention-country priority claim must be made within six months (Section 154).
For help registering your mark, see our trademark registration services.
