What rights are attached to an unregistered trade mark?
A person using a trade mark will get the right to prevent others from using the trade mark. However, if a trade mark is not registered, the trade mark owner cannot file an action for infringement. An unregistered mark will have only the right of passing off under common law. However to exercise this right, the trader has to establish the use of the mark by factual evidence that he has an established trademark which has reputation and goodwill.
What does the trademark office review before registering a trade mark?
For registration of the trademark, the trademark registry will look for the following:
- Whether the applied trademark has any conflict with any existing registered trade mark or pending trademark application? A registration will be granted only if the mark for which application has been filed does not have any conflict with existing trade marks or applications.
- Whether the applied trademark describes the kind, quality, use or geographical origin of the goods or services for which it is used? Registration will not be granted if the trade mark describes the goods or services for which it is used.
- Whether the trademark has any distinctive character? A trade mark will be accepted only if it has distinctive character.
- Whether the applied trademark is obscene, scandalous or affects the religious acceptabilities of any society? Trade mark registration will not be granted if the mark is obscene or has an impact on religious sentiments of communities.
What are rights of a famous mark?
A Famous trademark is one that has established a strong connection, in the minds of the consumers, between a specific good or service and the source of that good or service. For example, the COCA-COLA and SONY brands have been determined to be famous marks by courts.
The owner of a famous trade mark can prevent another person from using the same or similar mark for any goods or services. He will also have the right to prevent others from registering identical or similar marks for any goods or services
When am I liable for infringing famous marks?
You are liable for infringement of a famous mark if you use the identical or similar mark for your goods or services and such a use causes actual injury to the trade mark owner or is detrimental to his interests.
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