In the event that the start-up or registration of a business requires proof of ownership or authority in regards to the business’s brand name or logo and any other forms of intellectual property, then this becomes important especially where a business uses a proprietary brand name or sells branded products.
This document provides information about trademark and brand proof, the types of trademark or unregistered brand and the preparations required by a business before handing in the document.
What Is Trademark and Brand Proof?
Trademark and brand proof for the purpose of business registration refers to the documentation that proves who owns, controls and has the authority to use a specific brand name, logo, word mark, device mark or trademark.
The concept of brand proof is more comprehensive. Even if the business does not yet have an application for the trademark, the enterprise can have brand names and commercial identity.
For instance, a business can have:
- Proprietary brand name
- Business logo
- Product packaging
- Website and domain name
- Marketing materials
- Product labels
- Customer invoices
- Distribution agreements
Such documents can prove the brand identity and commercial connection but, in general, cannot provide legal protection in the form of a trademark registration.
Why Is Brand Proof Necessary for Business Registration?
Not all business registration processes require a trademark. However, brand proof is needed in cases where a business registration name or intended activities relate to a brand.
Some examples include cases when:
- The business is registered as a proprietary brand.
- A business bank account is opened with a brand name.
- Branded goods are listed in the online marketplace.
- A business applies for a franchise.
- A business becomes an authorized distributor.
For this reason, businesses need to separate the two types of documents; that is, documents for business registration and those for intellectual property. While incorporation documents create the legal identity, documents related to trademarks and brands create a right or an association with the brand.
What Documents are considered as Evidence of Trademarks and Brands?
In fact, the particular document accepted may vary depending on the organization making the request and the purpose of the verification process.
Trademark Certificate as Evidence of Trademark Registration
A trademark certificate is one of the most reliable documents that prove that a trademark has been registered in the name of the proprietor whose details can be found in the trademark registry.
Upon registration, the Registrar will issue the certificate of registration according to the relevant provisions of the Trade Marks Act.
The company providing its trademark certificate must verify the correctness of the data provided by comparing them to the company that is going to prove its ownership of a trademark.
This data includes such elements as:
- Trademark owner
- Registered trademark
- Trademark number
- Mark or logo
- Class of trademark
- Goods or services
- Date of registration
- Status of registration
The use of a certificate is especially efficient if another party needs formal proof that the company has registered trademark rights.
Trademark Application as Evidence of Brand Ownership
A trademark application proves that an applicant has filed an application for registration of a certain trademark.
Yet, an application cannot be considered as a registered trademark.
The application may include details like:
- Names of applicants
- Application number
- Brand names
- Logos
- Class of trademark
- Goods and services
- Date of filing
- Status of application
India’s Trade Marks Registry offers an option to file a new trademark application and track it at subsequent stages.
Trademark Registration VS Trademark Application
It is very important to understand the difference between an application and registration while making brand documentation.
An organization must never imply that its pending trademark application is its officially registered trademark.
Difference between Trademark Proof and Brand Proof
Trademark proof will be limited to the legal or the rights related aspects of a trademark. On the other hand, the scope of brand proof will be wider and include ownership and use or authorization.
In other words, trademark proof document will be limited to the proof of trademark ownership. A company’s product invoice will be the brand proof; however, it does not prove the registered trademark.
In the same way, authorizations can prove that an organization is legally authorized to use another company’s brand, but it cannot prove the trademark ownership.
This distinction is very important in case of distributors, franchisees, manufacturers and authorized sellers.
Proof of Unregistered Brand Ownership
Brand ownership is not always limited to the process of trademark registration. In these instances, different kinds of documents can be used to prove the brand ownership.
Some useful documents are:
Brand Ownership Documents
Original logo files, design agreements, creative contracts, and proof of brand creation can help establish how the brand was developed.
Commercial Invoices
Invoices issued under the brand name can help show its commercial use.
Product Packaging and Labels
Photos of products, packaging, and labels displaying the brand can help show how it is used in practice.
Advertisement Documents
Documents of advertisement such as digital advertisement, brochures, catalogues, social media campaign etc. can prove further usage of the brand.
Website and Domain Details
The website with branding and domain details can further help the business to prove that it uses the brand.
These are valuable pieces of evidence, which cannot be called a trademark certificate though.
Proof of Intellectual Property Ownership through Assignment Deed
An assignment deed may become necessary in case there is transfer of the ownership of the trademark from one individual/business to another.
For instance, an entrepreneur may be an owner of a brand but may transfer the ownership of the trademark to the private limited company later on. The company may have to produce the proof of transfer of trademark ownership from the brand owner to the company.
An assignment deed can prove the history of ownership of the trademark.
Where there is transfer of a registered trademark, it is required to update the relevant records with Trade Marks Registry.
There must be documentation available that indicates ownership.
License Agreement and Brand Authorization
Every company that uses a brand does not own the brand.
It could be a distributor, a franchisee, a manufacturer or an authorized seller who is permitted to use a brand from some other company through a legal agreement.
Where this is the case, there is need for a licence agreement or a brand authorization instead of the trademark certificate in the name of the applicant.
The following information should be included in a well drafted authorization:
- Owner of the trademark
- The authorized company
- Name of the brand
- Logo, where applicable
- Goods/services covered by the trademark
- Territory
- Time period
- Purposes of authorization
- Conditions of use
An authorized brand agent cannot refer to himself as the trademark owner if the ownership was never transferred.
Word Mark and Device Mark as Brand Proof
There could be various forms of trademark protection in a business.
| Brand Element | Example |
|---|---|
| Brand name | ABC |
| Word mark | ABC |
| Logo | Stylised ABC symbol |
| Device mark | Logo/device representation |
| Brand identity | Name, visual identity and presentation |
A company could have distinct applications or registrations for the trademark and the logo.
In presenting the evidence, the document must match the brand element for which it is presented.
Classes of a Trademark
A trademark class shows the category of goods or services for which the registration will be made.
India uses the Nice Classification for goods and services. Companies should pick the right classes depending on what they do.
For instance, a business selling clothes, running a restaurant, or offering software could be in different classes of trademarks.
The trademark application or certificate must thus be reviewed to see if the stated goods/services are covered.
An incorrect selection of the class would lead to differences between the business activities and the trademark protection.
Symbols of a Trademark: ™, ℠, and ®
Trademarks are used by companies to show the status of their brand; however, these symbols mean different things.
| Symbol | Meaning | Typical Use |
|---|---|---|
| ™ | Trademark | Used to indicate a claimed trademark |
| ℠ | Service Mark | Used for service-related marks |
| ® | Registered | Used for a registered trademark |
Use of the ® (Registered) sign is not allowed to falsely indicate that an unregistered mark is registered.
In addition, the presence of the ™ symbol on packaging or on the website does not indicate trademark registration.
It is recommended that companies use the above symbols wisely and not give false impressions about their intellectual property.
Establishing Trademark and Brand Proof for Business Registration: Checklist
Before you submit your trademark and brand proof for business registration, gather all the supporting documents in accordance with the brand type.
| Brand Status | Recommended Documents |
|---|---|
| Registered trademark | Trademark certificate, registry record, owner identification |
| Pending trademark | Trademark application, acknowledgement, application number |
| Assigned trademark | Trademark certificate, assignment deed, updated ownership records |
| Licensed brand | Licence agreement, trademark owner details |
| Franchise brand | Franchise agreement, brand authorization |
| Distributor brand | Distribution agreement, authorisation letter |
| Unregistered proprietary brand | Commercial records, packaging, advertising, ownership records |
| Logo ownership | Design agreement, assignment, device mark registration where applicable |
It becomes easy to verify the brand through the organization of these documents and also minimizes chances of providing irrelevant documentation.
Common Mistakes in Providing Proof of Brand
Businesses tend to make mistakes in preparation of intellectual property documents.
Treating an Application as a Registration
Submitting a trademark application does not mean the trademark has been registered.
Submitting a Trademark Owned by Someone Else
If the certificate names another person or organization as the owner, provide documents showing your right to use or claim the trademark.
Overlooking Trademark Classes
Check whether the trademark registration covers the relevant goods or services.
Using an NOC as Proof of Ownership
A general NOC may show permission to use a name or premises, but it does not necessarily establish trademark ownership.
Missing Ownership Transfer Records
When brand ownership changes, keep assignment deeds, acquisition records, and related intellectual property documents.
FAQs
The registration certificate which specifies the relevant owner of the trademark is considered substantial evidence to show that a trademark is registered. The related record on the trademark registry can offer further confirmation.
Yes. In this case, the application can be used to show that the applicant filed an application for registration. But it does not prove that the trademark is already registered.
Supporting documents can be used, such as invoices, branding material, advertising history, web details, domain details, brand creation documentation, etc. They can prove brand ownership/usage but they cannot replace a trademark certificate.
The trademark certificate is the substantial evidence for showing that a trademark is already registered. Supporting documents will be needed in cases where the trademark has been assigned, licensed or transferred since its registration.
Conclusion
Trademark and brand proof to register the company is necessary for proving the connection between the business and its brand name or trademark. The type of proof needed will be determined based on whether the brand name is registered, being registered, not registered, licensed, or owned by another entity.
The trademark certificate is a powerful proof of registration, while the trademark application serves as proof that registration was attempted. Assignment deeds will prove ownership, while license agreements or brand authorization letters will prove usage permission without ownership transfer.
