Intellectual property is a significant part of modern trade as an assortment of copyright, trademark, design, geographical indication, patents, industrial designs, and integrated circuits is a beneficial acquisition for any company. It can create great competition in the market, and hence manufacturers and traders can expand their creations more effectively.
What is a Trademark?
A trademark is a unit of intellectual property rights. It contains any phrase, name, symbol, device, or combination. In brief, a trademark is a brand name, and a trademark is a mark or symbol which is competent in distinguishing goods or services from others. After registering the trademark, nobody can infringe the rights of trademark holder.
A trademark is registered-
- To lawfully safeguard the brand from fraudsters.
- To give you a distinct verification in the market.
- To make your goods and services look different from the other product.
Registered V/S Unregistered Trademark
The trademarks are documented as per the provisions of the Act. However, it is not compulsory in India to register trademarks; thus, a person may have either registered or unregistered trademarks.
Registered Trademark
Under the trademark act 1999, the trademark gets registered.
A person who registers the trademark enjoys the exclusive right of the registered trademark.
A person can use their products and services solely after trademark registration. The validity of a registered trademark is ten years.
One can also renew it after the time duration gets completed. Registration of trademarks helps in many ways-
- It can help in identifying the basis of goods and services.
- It also protects the public from buying fake products.
- It can sue the person who infringes the rights of a trademark by using the other identical trademark.
Registration of the trademark is prima facie evidence of the product’s validity. A person can make a civil and criminal suit for the violation of the trademark act. After registration, all the rights of trademark holder lie in the owner’s hand.
Unregistered Trademark
Unregistered trademarks are not registered under the trademark act. People can use an unregistered trademark in goods and products, but it cannot possess the legal benefit of the Act. They are secure under the common law.
No one can file a suit for trademark infringement if the trademark is not registered under the Act.
In an unregistered trademark, it is the liability of the owner to demonstrate the value of goodwill and products. It can be protected after it gets recognition from the public.
Rights of an Unregistered Trademark Holder
The rights of the unregistered trademark holder can prevent another person from using the identical trademark. It may result in the passing-off of rivals who use it without authority, which is different from registered trademark holders’ rights. As such a situation happens, a person can take the help of common law.
The claimant may obtain the damages or profit.
The claimant may bring action against the passing-off:
- Goodwill: if he has used his goodwill in his trademark. The claimant has goodwill because of his trademark, and the defendant has used his trademark for his use.
- Damages: If the claimant has suffered any damages because of the defendant, which created confusion in customers’ minds, it may damage the original product’s image.
- Fabrication: Misrepresentation occurred because of the defendant, which may distract the customer from the original product and lead to confusion among the public.
Rights of the Registered Trademark Holder
Though registering the trademark is not compulsory, registering it can avail more benefits of the Act.
Rights of Use Solely
This trademark registration gives the exclusive right to use the owner solely. In this case, the owner of Ramdev Food Products Pvt. Ltd. v. Arvindbhai Rambhai Patel can use the exclusive right as the trademark is registered.
Remedy Against Infringement
The trademark owner can seek remedy if the infringement of rights has been done. He may also file a suit for the damages that occurred. The trademark, if not registered, cannot proceed with the infringement procedure and cannot recover damages which occur. Only the person who registered the trademark can continue with the proceeding for the trademark infringement.
Exclusive Right to the Registered Trademark Holder
It is where more than two persons are registered owners of trademarks. They are identical to or nearly resembling each other. The exclusive right to use trademarks shall not be deemed to have been acquired by persons merely by registration of trademarks. However, each person has the same rights as other persons, excluding registered users using by a permitted use, as he would have if he were the sole registered proprietor.
Right to Assign
The owner of the trademark holder has the right to assign the trademark for the price with the receipt.
Right to Alter Registered Trademark
If the owner of the trademark wants to alter the trademark, he can apply to the registrar for the alteration of the trademark. An application is filed so that it does not affect the value of the present trademark. The registrar may also accept or reject the application as per the terms and conditions.
Right to Seek Correction of Register
After the trademark registration, the trademark owner may apply the correction of the error that occurred in registration.
Conclusion
Trademark is the identity of the product. The rights of trademark holder allow the owner to be conscious and enjoy being a unique trademark. If the trademark is unregistered, the owner has limited rights. An unregistered trademark is based on the common law. The user must ascertain that his use was substantial along with the other essentials specified in this article.
The case matter of an unregistered trademark depends on the judicial decision. So, until a precedent is delivered by the Supreme Court or High Courts or an amendment in the Trademark Act of 1999, the law about unregistered trademarks will be the same.
