Three major rights of well-known trademarks:
Three major rights vindicate any trademark including the well known trademark. It has been seen above that as per section 11 (6) to section 11 (9) a trademark which is not having a reputation in India can be designated as a well-known trademark. Indian courts have been validating foreign reputation of a trademark as reputation in India by the principle of trans border reputation, however, it remains to be seen in each case, how much insistence on local reputation is placed. The law relating to the above referred three rights is as under:
Opposition to Registration:
First right is to oppose the registration of a similar or offending mark. A registered well known trademark for all purposes shall and can always exercise the rights of an ordinary trademark. A trademark which has been designated as well known trademark would be possessing reputation, but the reputation may not necessarily be in India.
Rectification or Removal:
Second is the removal of trademark from, or rectification of register in relation to such a similar mark and the right to proceed for rectification or removal of others mark, there is no special privilege for a well-known trademark.
Infringement and passing off:
Third right is the right to restrain another mark through infringement or passing off actions for various activities on the basis of confusing use of a similar mark, similarity in trade dress, dilution and many such activities which are not acceptable to the rights holder.
In the year 2003 introduced infringement of a trademark in respect of the dissimilar mark for the first time. For a successful infringement action under section 29 (4) in respect of dissimilar goods or services it is necessary for the trademark to have reputation in India. Only on possessing reputation to the right to proceed with an infringement action against dissimilar goods or services accrues. Thus the way section 29 (4) is worded, if a well-known trademark does not possess domestic or territorial reputation in India, it would not constitute infringement under section 29 (4).
Well known trademarks which do not have operations in India do possess trans-border reputation which has come handy in various aspects for establishing the exalted protection to trademarks.
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