UNREGISTERED TRADEMARK VS REGISTERED 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.

    BENEFITS OF REGISTERED TRADEMARK
    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 trademark registration is valid for a period of ten years from the date of application and a 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.

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