November 17, 2021
Difference Between Registered And Unregistered Trademark
BASICS OF TRADEMARK
In India, trademarks are governed by the Trademarks Act, 1999 (‘Act’). A trademark is a distinguishing mark, logo, symbol, or brand used by an individual or organization to differentiate their services or goods from those of others.
The Trademarks Act of 1999 establishes the legal framework for trademarks in India. The Trademarks Act follows international Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS agreement)
REGISTERED TRADEMARK
A trademark that has been registered under the Trademarks Act of 1999 is known as a registered trademark. After registering, the trademark owner gains exclusive rights to use the mark in connection with his services or products.
The registration of a trademark aids in identifying and publicizing the origin of services and commodities. It preserves a trader’s reputation and prevents the public from purchasing someone else’s services or products. When others use a similar or identical brand, a registered trademark owner can sue them for infringement.
A Trademark Registration certificate is a prima facie evidence of ownership of brand name.
LEGALITIES OF REGISTERED TRADEMARK
The Trademarks Act, through its different sections, also provides specific incentives for trademark registration. Effects of Registration are covered in Chapter 4 of the Trademarks Act. In the case of a registered trademark, the aggrieved might seek civil and criminal redress in a trademark infringement action. Furthermore, registration offers some benefits under section 28 of the Act. The exclusive right to use a trademark in connection to products or services is granted to the registered proprietor of the trademark when it is registered. Furthermore, the registered trademark can seek remedy against infringement of the trademark under the Act’s provisions. Registration can be used as prima facie proof of legitimacy under Section 31 of the Act.
To conclude, registration grants the mark a monopoly right in a particular region. It enables a registered trademark owner to prohibit unlawful use of his mark in connection with goods or services. The question is always whether a consumer of goods or services will be perplexed about the source or origin of the products or services. Infringement of registered trademarks can result in legal action, and registration reduces the plaintiff’s burden of evidence.
VALIDITY OF REGISTERED TRADEMARK
A trademark’s registration serves as prima facie proof of its validity. As a result, regardless of public awareness, the trademark has an evidentiary value from the time of registration. The Online trademark registration is valid for a period of ten years from the date of application and a Trademark renewal request can be filed before trademark office one year prior to the date of expiry. A trade mark can be valid for an infinite time subject to renewal request.
UNREGISTERED TRADEMARK
Trademarks that have not been registered under the Act are known as unregistered trademarks. Unregistered trademarks can be used on products and services, but they do not have strong legal protection under the Act. However, as India is a common law country and hence, unregistered trademarks also protected under common law rights, but for proving the same in a dispute is far difficult than having a ownership documents in form of Trademark Registration Certificate.
LEGALITIES OF UNREGISTERED TRADEMARK
Although there is no action for infringement for unregistered trademarks under the Act, they can still be protected under the common law tort of passing off. To be successful in such an action, the owner must demonstrate that the unregistered mark has equivalent goodwill or reputation concerning the product, service, or company with which it is associated.
As a result, under the common law tort of passing off, the owner of an unregistered trademark may be entitled to restrict the use of an infringing mark by a third party. The notion that “a man may not sell his own products under the pretense that they are the property of another man” underpins the action against passing off. Passing off is a type of unfair trade competition in which one person attempts to profit off another’s reputation in a specific trade or company.
VALIDITY OF UNREGISTERED TRADEMARK
It is the owner’s responsibility to demonstrate the unregistered trademark’s value and goodwill. It is only when it has established a positive public image that it is granted protection. Please note- The owner of an unregistered trademark is responsible for demonstrating the duration or length of time that the reputation of the services or goods existing or existing in the market.
Unlike other nations’ regulations, India does not need trademark registration. Unregistered trademarks are also protected and have some advantages. Unregistered trademarks, on the other hand, do not have a statutory right of infringement. The registered brand has a statutory right of infringement. In today’s growing and global world, a certificate of registration is usually asked by various departments in procuring government tenders or trading on Government e-Market Place in order to establish and registering one’s business. Even, a certificate of registration is asked by ecommerce giants such as Amazon and Flipkart, in order to list and sell one’s products on their platforms. As a result, trademark registration is recommended due to its evidentiary value and the benefits it provides.
Naseem Sheikh is a trademark enthusiastic and he is a member of Bar Council of Delhi, Bar Council of India & Delhi High Court Bar Association
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