While filing a trademark application in India, one of the information that must be submitted in the application is the trademark used since date. The trademark used since date can be a date in the past or “proposed to be used” – if the trademark owner has not began using the trademark. In this article, we look at the significance of the trademark used since date and the evidence that must be submitted for supporting the same.
Though the trademark used since date plays a major factor in the trademark application, the courts have ruled that “If the competent authority finds that a significant proportion of the relevant class of persons identify goods as originating from a particular undertaking because of the trade mark, it must hold the requirement for registering the mark to be satisfied.”
Thus, the courts have held that assessing the distinctive character of a mark is more important than the trademark used date. In assessing the distinctive character of a trademark, the following are taken into consideration:
The documents that can provide evidence for the claimed use can be:
These documents should contain the brand name and the date and proof that the brand name was used for a commercial purpose.
Continuous use of a brand name or logo helps in creating a secondary meaning. This helps the brand get a distinct recognition in the market. For example, usually registration of common names and surnames is not permitted, but if it is easily recognized by the public and they differentiate it from other products in the market due to the distinct name or logo, the registration would be permitted. A mark which otherwise may be denied might get registered because of a claim of prior continuous use.
The applicant who claims prior use usually has the upper hand in claiming right over the trade name. If an objection or a third-party opposition is raised, prior use can help the applicant regain his right. However, it is important that a valid user date is mentioned in the application, it cannot be claimed at a later stage.
The Trade Marks Act restricts the registered TM owner from interfering with the rights to use of a prior user. The prior user gets priority in registration. Moreover he/she can prevent any third person from trademark registration or infringing the mark that is similar to such a prior company or individual.
Passing off is a common law tort that is used to enforce unregistered trademark rights. If the unregistered trademark owner has been using the brand name before the registered owner, his right to use cannot be taken away.
For further more information related to trademark registrationform, the procedure of registering a trademark, documents required for trademark registration, you can call us at 8788091087. Our experts are available here to advise you the best in the matter of register logo. You can also send your query on Email: firstname.lastname@example.org. Visit our website: Herambindia and through the Trademark search, you can protect yourself from the matter of Trademark infringement.