Rights available under the constitution of India:

rights

The following two rights of trademarks are in the nature of rights governed by the constitution of India. These rights cannot be taken away by any legislation to the contrary.

  • The right to impart information through trademark is equal to constitutional rights pronounced by courts.
  • The right to be able to possess, own and use a trademark in relation to merchandise or services has been placed by the court on the footing of a constitutional right.

No liability for counterfeit or spurious goods:

rights

If there are spurious/fake goods in the market, it might become difficult for the buyers to rightly identify the origin of these goods, especially when the quantum of similarity between the goods is immense. It is worth noting that the proprietor of the trademark is not liable for spurious or counterfeit goods supplied or available in the market applied with his trademark. There is no obligation on the proprietor of trademark to restrain such supplies.

Though the consumers buy counterfeit or spurious goods with the belief that the goods are bearing genuine trademark, but in the situation, the trademark owner is also a complainant, as his sales and market is deprived in the first place. There is no mechanism to redress the loss caused to the consumers by supply of counterfeited goods in the market.

Other rights:

rights

The right which are miscellaneous or are exercised by the proprietor is volition or extended by courts are as follows:

On the commencement of the 1999 act the shift of jurisdiction to the home courts of the plaintiff has taken place in case of trademark also. Now the plaintiff can pursue the defendant at his own place of residence or his place of business.

The proprietor may multiply the use of trademark in other territories and on different goods or services, and a judicious mix of them can turn the proprietor into a real market power, only on the basis of a trademark.

When a person is a trademark owner, he becomes entitled as a person aggrieved to take certain actions under the trademark law, e.g., rectification or removal of trademarks from the trademark register, which action cannot be taken by a person who is not an aggrieved person.

Right to trademark – Foreign exporter or importer:

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If a foreigner is exporting goods into India under a registered foreign trademark and have a market in India, his mark after being sold in the Indian market would become an Indian mark and would be protected.

There may have contentious between the Indian importers and the foreign exporters for the ownership of trademark rights. It is desirable to obtain the registration and acquire exclusive rights in the trademark in order to protect the reputation and the goodwill which the importer may build. This may help to precisely determine who would be the owner of the trademark in India to avoid the future disputes as to the importers’ mark.

 Exception to rights – vested rights and concurrent use:

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There are certain exceptions to all these trademark rights. For example, a person who has been using a trademark but has not cared to either register his mark or oppose the registration of other mark’s similar to his own mark, remains unaffected. But, further growth of such a prior used trademark may be hindered. The owners of prior used trademarks enjoy the rights over their unregistered trademark without registration and the statutory exclusive rights in the similar trademark stated above do not prevail over the common law rights acquired by the prior user of the mark.

Injunctions against registered marks:

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For example, X obtains registration and uses a trademark, but Y has been using a similar trademark prior in time; in this situation X does not get any superior right against Y. X cannot restrain Y from use of trademark. In some cases, where Y enjoyed a lot of reputation, restraint orders could be issued against X inspire of the registration of its trademark.

A registered proprietor of a trademark does not have right to interfere with any bona fide use of one’s own name or one’s place of business or use of any bona fide description of the character or quality of goods or services. For example, if Y is using his own name or place, etc. he cannot be restrained.

The trademark owner is required to be careful about the marks being concurrently used in his own country on the same, similar or different goods or services as also the use of confusingly similar marks in other countries as Indian courts even protect trans-border repute or are willing to treat a person as owner of trademark if he used the trademark in a foreign country.

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