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Trademark means a mark/mark or symbol which distinguishes the goods or services of one person/organization from others. The trademark ensures that your unique brand name And this attached brand value are well protected.
In this competitive era, we all know that registering a trademark under the Trademark Act, 1999 is an asset that provides convenience. Brand recognition and protection for your market value And at the same time provides a distinct niche for your business in the market. But, getting a trademark registered is a voluntary exercise which is entirely at the discretion of the person concerned.
How do we protect unregistered digits?
Unlike registered trademark, unregistered trademark does not get statutory protection against infringement of such trademark, but common law as well as section 135 of the Trade Marks Act, 1999 recognizes unregistered trademark and provides relief if passed. If a certain mark has been used by someone for a long time and if the same brand name/mark has garnered sufficient amount of goodwill and goodwill in the market, then such mark is eligible to be recognized as a trademark. Officially registered as a Trademark under the Trademark Act, 1999.
It should be noted that, in order to get relief in the suit for passing offThe following conditions need to be fulfilled:
- The particular brand name/trademark must be distinctive and the claimant/owner is a former user of such particular trademark.
- There is a substantial amount of goodwill/recognition in the market with respect to the particular trademark.
- Disputes are false representations of goods or services that create confusion in the minds of consumers and an association with the owner’s goods and services is expressed.
- Such misrepresentation is likely to cause injury or damage to the owner of the trademark.
Henceforth, in order to obtain protection for an unregistered trademark, the above-listed imperatives will be considered by the relevant authorities. It needs to be clear that the use of the same trademark by the Respondent is harmful to the owner of the trademark as well as misleading to the public and consumers.
Section 135 of the Trade Marks Act, 1999 provides that the Court may grant relief in any suit for contravention or to be passed in the form of:
- The injunction provides that, such injunction may be granted subject to such terms and conditions, if any court thinks fit. An order of injunction may include either an ex-parte injunction or an interlocutory order.
- An account of either damages or profit, at the option of the plaintiff, subject to the conditions set forth, with or without an order of distribution of infringing labels, marks of destruction or erasure.
Related case law: Seven Towns v. Kidyland
Under the law of the case, a lawsuit was filed by Seven Towns, which owns the IP associated with the Rubik’s Cube, alleging that their IP was infringing with respect to the passage of trade dress by Kiddyland. The Delhi High Court granted an injunction in favor of the plaintiffs regarding unregistered trade dress for the Rubik’s Cube, which was claimed to have been in use for more than forty years and that the product was being sold in large quantities. Taking into account the entire matter, the court had given an injunction against the use of similar shapes and packaging for the product of the respondent.
Henceforth, while unregistered marks may be protected under common law, the owner of such unregistered marks may also obtain protection under the law of passing off by proving the reputation and goodwill on account of such unregistered trademark.
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