Rights conferred by registration of trademark
The trademark rights may be seen from the perspective of the personality of the trade mark. It has been highlighted that simply through use as a mark on goods or services which fulfill. The twin functions of showing origin and distinguishing function in the course of trade or rendering of services. The mark becomes a trademark.
Simultaneously, it starts enjoying trademark rights and the person who uses the mark on goods or services becomes the proprietor of the trademark. The other method to obtain trademark rights is by applying for registration. Before its actual use on goods or services.
A right holder as mentioned above may enhance his rights by way of the three-way expansion
- by using the trademark on more goods or services,
- in more territories,
- and adopting the mark with small differences
so that his exclusive rights in his trademarks taken together prohibit a large range of similar trademarks.
Rights conferred by registration application
Certain rights vest by mere fact of applying for trademark registration.
(i) It serves as evidence of adoption and selection of trademark for stated goods or services.
(ii)It enjoys priority against identical or similar marks pending registration for same or similar goods or services. If similar mark is applied or used after the date of application. This priority of six months is applicable in all members of the Paris Convention and the WTO countries.
(iii) Preservation of filing date within six months of priority period in all countries of the Paris Convention and WTO. Which means that by making an application in one country
If the applicant chooses to make application in the other countries, other applications will be deemed to have been filed on that earlier date.
Rights Conferred by Registration of Trade Mark
The trademark registration consults the following rights on the registered proprietor:
1.It confers on the registered owner to the use of the trademark with total rights in association to the goods or services of which trademark is registered.
2.If the trademark contains of various matters, an complete rights to the use of the trade mark taken as a whole.
3. It entitles the registered proprietor to get relief in respect of infringement of the trade mark provided by the 1999 act. When a similar mark is used on
(a) same goods or services,
(b) similar goods or services,
(c) dissimilar goods or services, provided the registered mark has reputation in India.
4. The registration entitles the registered trademark to restrain others from using any mark or packaging which would depict an association with the registered mark or in any manner which would dilute the value or tarnish the image of the trademark. This is a new right independent of similarity.
5. The trademark registration forbids every other person to use or to obtain the registration of an identical.
6. After trademark registration for goods or services, there shall be no registration for the same or confusingly similar trademark, not only for the same goods or services.
7. After registration of the trade mark for goods or services and if the trademark is found to be well known, there shall be no registration for the same or confusingly similar trade mark to the well known mark.
8. Moreover, after registration of the trade mark for goods or services, there shall be no registration for the same or confusingly similar trade mark to the registered trade mark, if the mark sought to be registered would possibly be restrained from use by courts in a passing off suit filed by an owner of trade mark or if the use of the proposed mark would be injuncted in a copyright matter in terms of section 11(3) of the Act.
9.Registered trade mark shall not be used by anyone else on business papers and in advertising. The use in comparative advertising is subject to the condition that it should not take undue advantage of the trademark. Such advertising should not be contrary to honest practices in industrial or commercial matters. The advertising should not be detri-
mental to the distinctive character or reputation of the trademark.
10.There is a right to restrict the import and export of goods or services under the mark. This would include the goods or services marked with a trademark similar to one’s registered trade mark.
11. The proprietor has a right to restrain use of the trademark as a trade name or part of a trade name or name of business concern dealing in the same goods or services.
12.The registered trademark continues to enjoy all the rights which vest in an unregistered trade mark. By registration the proprietor of an unregistered trademark is converted into proprietor of the registered mark.
An application for registration may be based on a mark in use from a time prior to making of such application. Such a trademark is already vested with rights under Common law from the time the use of the mark was commenced.
Benefits of Trademark Registration
The Supreme Court in year 2006 while delivering a judgment sought to restate the nature of Trade marks and Trade Names as follows:
A trademark is the property of the manufacturer. The purpose of a trademark is to establish a connection between the goods. The source thereof which would suggest the quality of goods. If the trademark is registered, indisputably the user thereof by a person who is not otherwise authorised to do so would constitute infringement.
It is well-settled that when defenses in regard to right of user are set up. The onus would be on the person who has taken the said plea. It is equally well-settled that a person cannot use a mark which would be deceptively similar to that of the registered trademark.
Registration of trade marks is envisaged to remove any confusion in the minds of the consumers. If, thus, goods are sold which are produced from two sources. The same may lead to confusion in the mind of the consumers. In a given situation, it may also amount to fraud on the public.
A proprietor of a registered trademark indisputably has a statutory right thereto. In the event of such use by any person other than the person in whose name the trademark is registered. He will have a statutory remedy in terms of section 29.
Ordinarily, therefore, two people are not entitled to the same trademark, unless there exists an express license in that behalf.
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