Rights conferred by registration application:
Certain rights best by mere fact of applying for registration of a trademark.
- It serves as evidence of adoption and selection of trademark for stated goods or services.
- It enjoys priority against identical or similar marks pending registration for same or similar goods or services, if similar marks 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.
- 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 application will be deemed to have been filed on that earlier date.
Rights conferred by registration of trademark:
The registration of a trademark confers the following rights on the registered proprietor:
It confers on the registered proprietor the exclusive right to the use of the trademark in relation to the goods or services in respect of which the trademark is registered.
If the trademark consists of several matters, there is an exclusive right to the use of the trademark taken as a whole. If the trademark contains matter common to trade or is not of a distinctive character, there shall be no exclusive right in such non-distinctive parts.
It entitles the registered proprietor to obtain relief in respect of infringement of the trademark in the manner provided by the 1999 act when a similar mark is used on
- Same goods or services
- Similar goods or services
- Dissimilar goods or services provided the registered mark has reputation in India.
The registration entitles the registered trademark to restrain other from using any mark or packaging which would depict on 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.
Registration of a trademark forbids every other person to use or to obtain the registration of an identical or a confusingly similar trademark in relation to the same goods or services of the same description of goods or services in relation to which the trademark is registered.
After registration of the trademark for goods or services, there shall be no registration for the same or confusingly similar trademark, not only for the same goods or services but also in respect of similar goods or services, by virtue of section 11(1).
After registration of the trademark 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 trademark to the well-known mark even in respect of dissimilar goods or services by virtue of section 11(2).
Moreover, after registration of the trademark for goods or services, there shall be no registration for the same or confusingly similar trademark to the registered trademark, 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 trademark or if the use of the proposed mark would be injuncted in a copyright matter in terms of section 11(3) of the act.
Registered trademark 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 detrimental to the distinctive character or reputation of the trademark.
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 trademark.
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.
The registered trademark continues to enjoy all the rights which vest in an unregistered trademark. 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.
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