Rights and defense


  • Is ownership of a trademark in your jurisdiction figured out on a first-to-file or first-to-use basis?

Ownership of a trademark in India is identified on a first-to-use basis. Unlike the law on patents or designs, the trademark law mandates the first-to-use guideline over the first-to-file rule.

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Unregistered trademarks

  • What legal securities are available to unregistered hallmarks?

As a first-to-use nation, unregistered hallmarks with previous use can be protected under typical law in India. The passing off of trademarks is a tort actionable under typical law and is primarily used to protect the goodwill attached to unregistered hallmarks. It is founded on the standard tenet of law that one celebration needs to not benefit from the labor of another. Different judicial choices have actually developed that a passing-off action is a misstatement made by an individual in the course of trade to prospective clients of the manufacturer or the ultimate consumers of the products or services that it provides:

which is computed to hurt business or goodwill of another party; and

which triggers real damage to business or goodwill of the celebration which has brought or is likely to bring the action.


  • How are rights in unregistered marks developed?


In a normal passing-off match, the courts will generally think about the following issues:

whether the plaintiff is a previous user of the mark;

whether the complainant s products have acquired diversity and are associated in the minds of the public with the complainant s mark; and

whether there is a misrepresentation by the accused with regard to its products and such misrepresentation is likely to result in confusion in the minds of consumers, with the result that they might deal with the accused s products as those of the plaintiff.

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  • Are any unique rights and defenses afforded to owners of widely known and well-known marks?


The trademark law accords extraordinary protection to hallmarks that are popular and safeguards them from the violation or passing off. The Trademarks Registry acknowledges well-known hallmarks in India on the basis of international, nationwide and cross-border credibility.

The Trademarks Act 1999 protects popular trademarks in 2 ways:

an action against the registration of similar marks; and

an action against the abuse of the popular mark.

To what extent are foreign trademark registrations acknowledged in your jurisdiction?

Foreign trademark registrations have persuasive value in assistance of:

an application for registration of an identical mark by the exact same applicant;

opposition by the rights holder versus an application for a comparable mark; and

infringement and passing-off actions.

Registered trademarks

  • What legal rights and protections are accorded to signed up hallmarks?

A trademark registration:

supplies prima facie evidence of ownership and credibility;

provides statutory defense in India;

helps to discourage others from utilizing the trademark unlawfully; and

enables a match for the violation to be brought.

On the other hand, in the case of an unregistered mark, a passing-off match can be filed. As passing off is a typical law solution, the concern of proof is more serious on the plaintiff than in a violation action.


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