Trademark Registration – A Guide for SMEs and Start-Ups

In the dynamic landscape of Indian enterprise, Small and Medium Enterprises (SMEs) and start-ups form the backbone of economic growth, employment generation, and innovation. Yet, despite their vital role, these enterprises frequently overlook a fundamental asset intellectual property, more specifically, trademarks.

In an era where brand perception governs market value, the registration of trademarks is not merely a procedural formality—it is a strategic imperative. This article offers a practical and legal guide for SMEs and start-ups in India to navigate the trademark registration process, highlighting its significance, common challenges, and relevant judicial pronouncements.

A trademark is a sign capable of distinguishing the goods or services of one enterprise from those of others. It includes words, logos, names, slogans, shapes, and even sounds, provided they are distinctive and capable of graphical representation. [Trade Marks Act, 1999, Section 2(1)(zb)]

For start-ups and SMEs, a trademark:

- Protects brand identity and prevents misuse;

- Builds customer trust and loyalty;

- Becomes a valuable intangible asset, eligible for licensing, franchising, and monetisation;

- Enhances business credibility, especially during investor due diligence.

In Milmet Oftho Industries v. Allergan Inc., the Hon’ble Supreme Court held that a trademark is not merely a symbol of a product but a symbol of the quality and reputation associated with it. This pronouncement underscores how pivotal trademarks are to brand perception and goodwill.

Registering a trademark in India is governed by the Trade Marks Act, 1999, administered by the Controller General of Patents, Designs and Trade Marks.

Step 1: Trademark Search
Before filing, it is advisable to conduct a trademark availability search to ensure that the proposed mark does not infringe upon existing rights.

Step 2: Filing the Application (Form TM-A)
The application can be filed online or physically. Start-ups recognised under the DPIIT Start-up India Scheme enjoy a reduced fee.

Step 3: Examination Report
The Registry may issue an examination report objecting to the application on absolute or relative grounds.

Step 4: Response and Hearing
The applicant must respond to objections. If objections are not resolved in writing, a hearing may be scheduled.

Step 5: Advertisement in the Trademark Journal
If accepted, the mark is advertised for public opposition.

Step 6: Registration
If unopposed or opposition fails, the mark proceeds to registration and a certificate is issued.

Despite the clear benefits, the trademark landscape poses multiple hurdles:

1. Lack of Awareness

Many start-ups remain unaware of the value of trademark registration, often conflating business name registration with trademark protection.

2. Limited Budget and Resources

SMEs often defer IP registration, allocating funds toward operations or marketing instead. However, this leaves the brand vulnerable to misappropriation.

3. Domain Name vs Trademark Conflicts

With a digital-first approach, businesses often secure a domain name without realising it does not guarantee trademark rights. In Satyam Infoway Ltd. v. Sifynet Solutions Pvt. Ltd., the Supreme Court held that domain names are subject to the same legal principles applicable to trademarks.

4. Copycat and Passing Off

Unregistered marks enjoy only limited protection under the common law doctrine of "passing off." In Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd., the Supreme Court emphasised that the test in passing off is the likelihood of confusion, and even phonetic similarity may suffice.

- Legal Protection: A registered trademark offers exclusive rights to use the mark in relation to the goods or services registered.

- Investor Confidence: Trademarks act as a signal to investors that the company values brand strategy and legal compliance.

- Defensive Tool: Trademark registration enables swift enforcement through cease-and-desist notices, injunctions, and monetary damages in cases of infringement.

- Global Expansion: Through the Madrid Protocol, Indian trademark owners can seek protection in multiple countries using a single application.

Courts in India have consistently upheld the significance of trademarks in preserving business identity and preventing consumer deception.

In Laxmikant V. Patel v. Chetanbhat Shah, the Court held that passing off is a tort actionable per se and the person injured need not prove actual damage.

Further, in Neon Laboratories Ltd. v. Medical Technologies Ltd., the Supreme Court refused interim relief to a prior user who had slept over his rights for more than a decade, reinforcing the principle that delay can defeat equity in trademark enforcement.

For India’s ambitious start-ups and SMEs, branding is no longer a luxury; it is a lifeline. Trademark registration serves as both a sword and a shield defending the entrepreneur’s vision while strengthening their market position. In a fiercely competitive and copycat-prone ecosystem, securing a trademark early is not just prudent; it is essential.

By proactively registering their trademarks, SMEs and start-ups do not merely protect their present they future-proof their business.

About the author: Divyang Chandan is the Head of Rent Control and IP practice at Chandan & Chandan.

Disclaimer: The opinions expressed in this article are those of the author(s). The opinions presented do not necessarily reflect the views of Bar & Bench.

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