Intellectual property is the incorporeal property which is invented or created by human intellect, Trademark is one of the type of intellectual property which is represented in form of recognizable logo, phrase, symbol, sign or mark.

It legally distinguishes one product from the other and creates a demarcation in products of the same kind but from the different manufacturers in the market making it more identifiable. Similarly, a mark used to identify and differentiate services, and its source is called Service Mark, however, in common practice, both marks are denoted as Trademark.

One of the major challenges which are faced by every product in the market is of being identical, similar, or the presence of a better substitute. A trademark helps to eliminate such issues and further pilot companies to develop trust, confidence, and loyalty in its products.

In today's dynamic and competitive world every business has to develop and maintain a distinct identity and deliver products that match the expectations of the consumer and in return churns out profits for the company.

It happens quite often that some brand is known commonly by its logo such as McDonald's has registered trademark of its logo 'M' written in specific font or the title 'I'M LOVIN IT' and people recognize it through its logo placed on top of its every outlet. Therefore, the protection and maintenance of such assets become essential.

Trademarks play a pivotal role in the progress of an organization and add a subsequent amount of value to its assets portfolio. The most valuable trademark is Google, worth $ 43.3 billion which is also 27 percent of the company's total value, similarly, the trademark value of Microsoft is valued at $108.8 million.

It adds up to the total value of the company which forms a greater part of the brand value of any company in the market. Also, in process of merger or acquisition between the companies the valuation of such intangible assets act as an important factor in determining the value of the company as a whole and whether such a proposal should be accepted or not. It also facilitates the marketing strategy in differentiating products or services from those of rivals at a glance and enhances the brand value of a company in the market. It facilitates companies in developing a long term and often emotional relationship with customers and It exists as an identification mark for them.

In India, the trademarks act 1999 and the trademark rules 2017 are the statues that govern the laws pertaining to trademarks. The registration of the trademarks in India is non-mandatory, however, it is considered beneficial to avoid conflicts in the future.

Rights And Protection Of Trademarks

The trademarks are considered to be the face value of a product or brand, therefore their ownership and rights to use are in the constant threat of being exploited by the competitors without vesting any authority. In order to protect such valuable assets registration of trademarks becomes an important measure. Although as India follows the first-to-use basis and not a first-to-file basis in terms of ownership rights of trademarks, it gives a certain degree of protection to the unregistered trademarks also.

The registered trademark in India is registered for a period of 10 years may be renewed for a further period of ten years on payment of prescribed renewal fees. A registered trademark is denoted by ® and is also denoted by TM if the person is claiming a right to use its brand as a trademark, although it pending to be registered with the prescribed IP office. The unregistered trademarks are protected under the common law in India and can be protected in a passing suit on a First-to-use basis.

Strategies To Protect And Maintain Trademarks

The Importance of trademark strategies

The trademarks protect brands and make them visible, therefore they should be protected and maintained in a proper way. A well-planned strategy can help to utilize the full potential of trademarks and also protect them from others taking a free-ride on them. The trademarks involve a complicated and sometimes lengthy process, therefore preparing for identification, registration, maintenance, and protection strategy helps in the long run to avoid ambiguity.

As the products are not limited to one country and big scale companies such as Google, IBM or Microsoft carry out their operations and market their products throughout the world in different countries it makes their IP assets more vulnerable to a global threat. This gives rise to a need to come up with trademark strategies that are not limited to domestic or home countries but are at the global level. It saves their overall cost of creating a separate strategy for each country, the Rights are given recognition on a country by country basis and the trademark is protected in different countries in terms of its ownership and use.

There are no specific standard strategies that are adopted by the companies in maintaining or protecting trademarks as these strategies changes as per different needs and specifications of every company, however, there are certain criteria which shall form part of every strategy that is being made for the protection or maintenance of any trademark throughout the world.

• Identification and selection of trademarks

  The trademark selected should be of such nature that it matches with the product line and make it more identifiable in the market. No trademark should be chosen which cannot be registered or is prohibited under the statue. A specific strategy should be adopted in coordination with the internal business and marketing teams to ensure that a consistent approach is taken in selecting a trademark for a product. The trademark should not be identical to any other one in the market and words that can confuse the consumer with the other products in the market shall be avoided. The words used for trademarks should be fanciful and arbitrary which makes it easier for the consumers to remember. Any kind of generic or descriptive words should be avoided as the trademark should be unique and attractive which shall be able to grab the attention of the people.
   

• Filing strategy

  The filing of a trademark can be a complicated and tricky field to work with, the trademark should be filed as quickly as possible. As in many countries, the first-to-file system is followed which provides ownership and protection to the person who filed the trademark first. It shall also be kept in mind that the trademark should be registered prior to discussing anything with the potential partners as it can lead to an information leak. The filing should be done with the utmost care and smartly by taking advantage of priority or seniority wherever applicable. The time and moment a chance of losing any trademark is noticed, first, its filing should be done in order to save it from going to other competitors. These strategies make a considerable difference in the adoption of a trademark because if the trademark is registered and acquired by any other competitor before the company intends ending to acquire it then it makes it very difficult to avail ownership or rights to use.
   

• Alignment with business strategies

  The trademarks are part of the IP asset portfolio of a company and therefore it should be adopted taking into consideration the business model or the business policies of the company. The goals and objectives of a company for adopting a certain trademark should be predetermined. The purpose for which the trademark has been taken should be aligned with the business the strategy of the company and should be thoroughly investigated whether it creates a profitable situation for the company or not.
   

• Strategy for clearance searches of trademarks

  It is very important to conduct a clearance search of a trademark before it is put to use. A clearance search is due diligence check which is conducted to identify any identical or similar trademark which has been currently used on any product in the market. It is crucial to determine it prior to its use as it can create conflict as it becomes impossible for two identical trademarks to co-exist. The clearance search is conducted for the registered trademark as well as the unregistered trademark governed by the common law of the country. The main searches which are conducted included to search any trademark of same or similar nature to the mark you wish to use, any trademark which is being used anywhere else in the country or other parts of the world, any trademark is being used for similar product or service, and if any trademark can cause any confusion in the mind of the customer.
   

• Timespan for filing

  There is no specific timeline in which a trademark should be filed, however, it is always advisable that the trademark should be filed for its registration with the authorities as soon as it becomes identifiable and is adopted for the new product. The delay in filing of a trademark makes it vulnerable to be taken up by any other competitor in the market.
   

• Cost considerations

  The registration of a trademark in one's own country may or may not be a costly affair but registering the trademark in numerous countries can incur a huge cost at initial stages where the product is newly launched in the market. To avoid such discrepancy filing of trademarks should be prioritized and should be filed in such order in which the most important assets should be filed first in the most important countries. The priority order can also be modified as per the leverage given by different countries as in case a country is lenient in its laws for registering a trademark than a later registration can be adopted.

Conclusion
A well-planned trademark portfolio can boost up the entire Intellectual property asset portfolio of the company and create a substantial increase in goodwill and brand value of the company. Therefore, a conscientious approach should be adopted in creating a strategy to adopt a trademark.

Before adopting any trademark, a due diligence check should be done in order to align it with the business model of the company and make sure that there are no discrepancies or defects in that trademark. A trademark shall be filed at the right time in consideration with the cost involved in adopting the trademark and threat from the competitors to acquire it first.

In addition to this, a thorough investigation shall be performed to make sure the trademark so adopted is not identical or similar to any other trademark in the market and is not being used by any other competitor in similar product lines or services.

A diligent consideration and execution of one's trademark strategy is crucial to shape consumer perception of your business and brands. Further mere adoption or acquirement of these assets is not enough, and proper policies shall be framed by the management of the company to manage them and protect them from being a freebee for the competitors in the market

These strategies assist to project future earning the capacity of these assets and expedite the management to frame policies for growth and development of the company. These assets nurture their fruits in the long run, which makes it necessary for the management of the company to plan a strategic framework by considering all the relevant factors in the adoption of a trademark and not disturbing its other operations which shall have priority over these. 

Written By: Anmol Mishra