Many Trademark owners think that once they have applied the Trademark and the mark got registered they are secure, but time and again we at Company360 have been focussing about the filing of right Trademark application along with concrete evidences. Trademark Act in India has many facets and has different rights for registered Trademark user and first brand name user.
The rights of prior user in Trademark law are given superior priority and hence, a prior user of a Brand name may sue the registered Trademark user as well.
So, what exactly is prior user, basically any person who has been bona fide using any name without having any trademark officially filed with the Trademark registry is termed as prior user.
The prior user has been given every right to object even a registered proprietor of registered Trademark.
The only thing a prior user cannot do is, he cannot file case for Trademark infringement but only has remedy in passing off.
In case you want to be sure that you don’t fall in this trap, always try not to use already filed Trademarks be it removed or refused or not renewed. As there are chances that mark is already being sold in the market but the owner of the mark might not have pursuit the mark, because of number of reasons.
Sometimes people don’t receive the letters from registry on time, or the advocates of record fails to intimate the clients about deadline. Hence, in such cases one can always file for removal of your registered trademark even though they themselves don’t have any subsisting or valid mark on record with Trademark registry.
This may also lead to filing of passing off case in court and you may be restricted to use your registered mark or related material.
Hence, one must be very careful during the filing of Trademark application and the particulars one declares in various columns of the Trademark application, specifically as to the usage of the brand.
Therefore, we may conclude that Trademark search is not just the only criteria to ascertain the filing of Trademark in India. A sound intellectual property right lawyer is must who analysis your proposed mark in an holistic manner and advise you accordingly.
