Trademarks
™ or ® — which symbol can you use?
Both symbols tell the world that you treat a name or logo as your brand, but they mean different things in law.
™ — “trademark”
You may use ™ with any brand name or logo you are using in business, whether or not it is registered. Many businesses start using ™ as soon as they file a trademark application.
® — “registered”
The ® symbol may be used only after the trademark is registered, and only for the goods or services it is registered for. Until the registration certificate is issued, use ™.
Why it matters: falsely representing a trademark as registered is an offence under Section 107 of the Trade Marks Act, 1999, punishable with imprisonment of up to three years, a fine, or both.
Trademarks
The trademark journey, step by step
Every application moves through broadly the same stages at the Trade Marks Registry. The status shown on the IP India website tells you where yours is.
- SearchA clearance search checks whether a similar mark is already registered or applied for in the same class.
- FilingThe application is filed in the relevant class(es). An application number is issued immediately, and you may start using ™.
- ExaminationThe Registry examines the application and may raise objections in an examination report — for example, that the mark is descriptive or similar to an earlier mark.
- Reply and hearingA written reply is filed within the time allowed. If the Registrar is not satisfied, a hearing is scheduled.
- AdvertisementOnce accepted, the mark is published in the Trade Marks Journal.
- Opposition windowAnyone may oppose the mark within four months of advertisement.
- RegistrationIf there is no opposition, or it is decided in your favour, the mark is registered and a certificate is issued.
Remember: a registration is valid for 10 years from the date of application and can be renewed every 10 years, indefinitely. Diarise the renewal date.
IP Litigation
What is passing off?
Passing off protects the reputation of a business even if its trademark is not registered. It applies when someone presents their goods or services as if they were yours — for example, by using a confusingly similar name, logo or packaging.
What usually has to be shown
- Goodwill — your name or get-up has a reputation among customers.
- Misrepresentation — the other party’s use is likely to make customers believe they are dealing with you.
- Damage — this causes, or is likely to cause, harm to your business or reputation.
Good to know: the Trade Marks Act expressly preserves the right to sue for passing off. Registration still makes enforcement considerably easier, because the registration itself is evidence of your rights.
Copyright
Do you need to register copyright?
In India, copyright arises automatically the moment an original work — a book, an artwork, a photograph, a piece of music, a film or software code — is created. Registration is not compulsory.
So why register?
- The certificate of registration is treated as prima facie evidence of the particulars recorded in the Register of Copyrights, which is valuable if you ever need to prove ownership.
- It creates a dated public record, which is useful when licensing or assigning your work.
- Software is protected as a literary work and can be registered too.
Duration: for literary, artistic, musical and dramatic works, copyright generally lasts for the author’s lifetime plus 60 years.
MSME
Delayed payments: your rights under the MSMED Act
The Micro, Small and Medium Enterprises Development Act, 2006, gives micro and small suppliers registered under Udyam strong protection when buyers pay late.
When must the buyer pay?
- Within the period agreed in writing — but that period cannot exceed 45 days from acceptance (or deemed acceptance) of the goods or services.
- If there is no written agreement, within 15 days of acceptance.
What if they don’t?
- The buyer must pay compound interest with monthly rests at three times the bank rate notified by the Reserve Bank of India.
- The supplier can refer the dispute to the Micro and Small Enterprises Facilitation Council (through the MSME Samadhaan portal), which first attempts conciliation and then decides the matter by arbitration.
- A buyer who wants to challenge the Council’s award in court must first deposit 75% of the amount awarded.
Also worth knowing: under income-tax law, buyers can claim a deduction for amounts owed to micro and small suppliers only when they actually pay within these time limits — which gives buyers a strong reason to pay on time.
Recovery of Debts
Cheque bounce: the Section 138 timeline
When a cheque given to pay a legally enforceable debt is dishonoured — for example, for insufficient funds — Section 138 of the Negotiable Instruments Act, 1881, allows a criminal complaint. The deadlines are strict.
- Present the cheque in timeCheques are generally valid for three months from their date.
- Receive the return memoThe bank returns the cheque with a memo stating the reason for dishonour.
- Send a legal notice within 30 daysA written demand for payment must be sent to the drawer within 30 days of receiving information of the dishonour from the bank.
- Drawer has 15 days to payThe drawer has 15 days from receiving the notice to make payment.
- File the complaint within one monthIf payment is not made, the complaint must be filed within one month after the 15-day period ends.
Consequences for the drawer: imprisonment of up to two years, a fine of up to twice the cheque amount, or both. The court may also order interim compensation of up to 20% of the cheque amount during the case.
