Summary: Using an unregistered trademark can expose a business to significant risks, including legal actions and financial losses. A trademark application doesn’t guarantee registration; it must first undergo examination, publication, and possible opposition before it is officially registered. During the application process, objections can arise, and oppositions may be filed by third parties. Even if the application faces opposition or objection, the trademark can still be used in the market but with potential legal consequences. If the opposition is successful or the application is rejected, continued use of the mark could lead to infringement claims, legal penalties, or forced discontinuation. An unregistered trademark doesn’t grant exclusive rights, and businesses using such marks risk infringing on established or well-known marks. Without registration, owners lack the ability to enforce exclusive rights and seek damages for infringement. Consequently, while unregistered marks can be used, businesses should be aware of the legal challenges, including lawsuits, costs, and potential harm to their brand’s reputation and goodwill.
Knowing the meaning of ‘trademark automatically leads to further questions – whether all trademark marks can be created without prior registration. What does one do if a violation takes place by use of an unregistered mark or if an attempt at registering a mark gets lodged is objected to or opposed.
In this case, a well-known overarching principle within trademark legislation is that an attempt filed does not guarantee a mark in question will get registered. It goes through the following processes first:
1. Examination: The Registrar reviews every trademark application and creates objections if there is a need for clarification on compliance or a conflict with existing trademarks. In the event that an objection is raised, the applicant is required to respond to the issues to and within the specified timeframe.
2. Publication: When the application passes the examination stage, it is published Trade Marks Journal for public viewing. Once published, individuals can contest the new trademark application for a certain period.
3. Opposition: Anyone can raise opposition to a trademark claim within four months of its publication and if contested, both parties are required to present their cases and at the very minimum halfhearted evidence to proving their claims.
4. Registration: In the absence of any oppositions filed, or if any oppositions filed are resolved in the applicant’s favor, then the trademark proceeds to registration and the certificate of registration is issued.
In simpler terms, a trademark can only be registered after clearing any objections or oppositions raised against it.
And what happens if a particular trademark accrues sufficient goodwill in a market but is still unable to obtain a tangible mark certificate from the Trademark Registry?
Assuming a person has a provisional mark registered and uses it for marketing purposes. If they face some opposition or an objection being filed, their position is determined by whether they are legally permitted to continue river mark application. Given that, here are some possible scenarios.
In case of Objection
A. In case your trademark application is objected to by the registrar, it is permissible to continue using the trademark while removing the sources of objection. An objection indicates, “My trademark is not a denial. It is nothing other than a request for clarification or modification.”
B. If the application is not completely negated, and the objection is not completely resolved and the application is refused, you are still free to place the trademark in the market. There is a catch, however: You will be exposed to stiff legal action from learned friends who claim preemptive rights to identical or similar marks and would seek to inhibit the use of the mark.
In case of Opposition.
a. The mark can still be used in commerce while the opposition proceedings are pending in India. The opposition proceedings mark are intend to legally object to the registration of the trademark. However, the registration is not protected by a refrain on the use of the mark.
b. In case the application for trademark registration is contested, and the contestation is successful, thereby barring registration, the applicant is still allowed to utilize the trademark in commerce. This use, however, has drastic legal consequences, more so if the opponent has superior rights or a trademark registration.
Risk Factors
A person or an applicant can place and mark the goods without registration or continue using a mark which is unregistered or in respect of a mark which is registered but has been opposed during the registration proceedings. Such uncontrolled uses are fraught with numerous side effects, such as infringement actions, court order, pecuniary loss, legal expenses, embargoes, and dilution of goodwill.
| WAUM OUTLOOK*
“The registration of a trade mark shall, if valid, give to the registered proprietor of the trade mark the exclusive right to the use of the trade mark in relation to the goods or services in respect of which the trade mark is registered and to obtain relief in respect of infringement of the trade mark. However Any person has the right to use a trademark, even if it is not registered, as long as it does not infringe on an existing registered or well-known mark also no person shall be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered trade mark. Hence use it at your own Risk. |
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