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What Is a Dead Trademark? Can We Use an Abandoned Trademark in India?

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Last Updated on June 27, 2024 by Swetha LLM

An understanding of trademarks is crucial for the protection of intellectual property in business. As a unique identifier for goods and services, a trademark provides legal protection against unauthorized use. Trademarks can, however, fall into certain categories and lose their legal protection, such as “dead,” or abandoned. Under the auspices of the Indian Trademarks Act of 1999, this conversation delves into the definition of a dead trademark and considers the feasibility of taking advantage of it in India.

What is a Trademark?

A trademark that has been registered can be used as exclusive property. Any special term, symbol, sign, or combination of these is called a trademark. Something that offers your goods and services a unique identification in the marketplace is a trademark.

What is a Dead Trademark?

“A dead trademark or abandoned trademark is the trademark which is no longer recognized or validated by any national/regional office of trademark registry”.

The USPTO does not currently consider dead trademarks to be legally pending. They previously applied to or registered with the national government, but they no longer get the benefits of registration due to certain circumstances.

When a trademark expires, numerous complications arise, including:

  • At this time, the candidate is not prepared to use the government trademark picture.
  • If any regional assurance exists, it might be associated with the trademark.
  • Rivals may potentially obtain rights to use the trademark.
  • The authority to halt all actions behind trademark orders is diminished.

Many trademarks expire each year; thus, this is a pretty common occurrence.

Would it be possible to Use an Abandoned Indian Trademark?

Yes, other Indian businesses are permitted to utilize these abandoned trademarks in accordance with the Indian Trademarks Act of 1999. But before other companies may make use of them, a few requirements need to be fulfilled.

  • First and foremost, it cannot be a trademark that is confusingly similar to or identical to one that was previously registered. When a mark is blatantly identical to one that has already been registered, other businesses are not allowed to use it.
  • Second, using it cannot lead to any misunderstandings or deceit towards clients. It cannot be utilized by other firms if it is used in a way that could lead to customer confusion or fraud.
  • Thirdly, it cannot be applied in a way that lessens the distinguishing qualities of a currently registered trademark. It will thereafter be unavailable for usage by other companies.

Other Indian businesses may use them provided certain requirements are fulfilled.

Advantages of Utilizing an Abandoned Trademark

Using a trademark that has been abandoned has various advantages. Among the advantages are:

  • Cost-Effective: Businesses can register an abandoned trademark for less money than they would have to pay to register a new one. Businesses can save money by using these trademarks instead of incurring the costs of creating and registering new ones.
  • Developed Brand: It can assist companies in developing a current brand. It might already have a solid reputation, and utilizing it can assist companies in swiftly taking root in the industry.
  • Competitive Edge: Companies may benefit from having this edge. Customers may find them more recognizable, and employing them can make companies stand out from the crowd.
  • Expanded Market Share: Companies may be able to grow their market share with its assistance. It might already have a clientele, and by using them, companies can rapidly reach that clientele.

What Typical Causes Exist for a Trademark to be Abandoned?

The following are the most frequent explanations for trademark abandonment, applicable to both India and any other nation in the world:

  • Inability to Meet Trademark Examiner/Registrar Requirements: The trademark registry office may abandon the proposed trademark if the applicant does not provide a timely or satisfactory response to the relevant trademark examiner/registrar after submitting the application for registration.
  • Admit Your Abandonment: Any trademark that is registered but whose owner does not reply promptly or consistently to periodic inquiries from the relevant office of the trademark registry may be considered abandoned. It can be the case that the owner no longer wants to utilize the trademark in connection with the sale of the mentioned goods or products. If the applicant loses a case of trademark opposition brought forth by a third party, they may also give up any trademarks they have filed.
  • Not Renewing Your Trademark: A trademark becomes invalid and dead if it is not renewed in a timely manner, particularly if it is not renewed in India within a year of the initial registration’s expiration date.
  • Lack of Observation and “Genericide”: If a registered trademark is not protected by a distinctive identity, it could become very generic in the eyes of the public. It might not be possible for a generic mark or word to fulfill the requirements of a trademark or service mark in the concerned jurisdictional marketplace.

How to Register or Restore a Dead Trademark?

It may be necessary to prove that the mark has not been used for five years with regard to products or services in the public domain in order to register an abandoned trademark. The original user would then be contacted by the registrar to inquire about any objections.

  • Investigating thoroughly to see if the intended trademark is being used anywhere in India is the first and most crucial step. It is essential to do a comprehensive trademark search across all Indian trademark databases, business listings, and the internet.
  • You will need to submit a new TM-A application using the following link if the abandoned trademark is already being used by another party: http://www.ipindia.nic.in/writereaddata/Portal/Images/pdf/FORM-TM-A.pdf.
  • One must file the TM-13 form in order to revive a deceased trademark.
  • You will hold legal ownership of your registered trademark once the application has been approved.

If your brand is unregistered, anyone could steal both your clientele and your identity. The worst thing is that you wouldn’t have any legal protection to preserve your brand and distinctiveness in the marketplace.

Conclusion

In order to preserve legal protection and exclusivity in the industry, trademarks are essential assets that need to be managed carefully. Under certain circumstances specified by the Indian Trademarks Act, a dead trademark that has been abandoned may present prospects for other firms. Even though using abandoned trademarks can provide competitive benefits and affordable branding solutions, it’s crucial to carefully follow the legal criteria to prevent violating anyone’s rights.

Consequently, companies looking to use intellectual property responsibly and successfully in India’s fast-paced marketplace must grasp the subtleties of trademark abandonment and its ramifications.

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Swetha LLM

Swetha, LLM, a lawyer with skills in writing legal content, is passionate about simplifying complex legal concepts and engaging readers with her insights of nuanced legal ideas. She is able to preserve the accuracy of legal material while adjusting the tone and style to fit the audience.