Last Updated on June 3, 2024 by Swetha LLM
In terms of intellectual property, a trademark represents a distinct entity that can be represented visually by words, signs, tags, symbolic characters, patterns, or combinations of these. To differentiate yourself from rivals in your industry or target audience, the primary goal of brand registration is to differentiate your products and services. The protection of intellectual property rights supports the preservation of this distinctive marker. These rights enable the registered trademark owner to stop unauthorized use of his brand is more practical than that of an unregistered trademark holder.
Meaning of a Trademark Owner
Choosing the kind and quality of goods and services associated with the brand should be within the purview of the trademark owner. This is a crucial choice because keeping a valid trademark is dependent upon identifying the right owner for registration purposes. Any type of business, including trusts and estates, limited liability companies, partnerships, sole proprietorships, corporations, and so forth, can be the legitimate proprietor of a trademark.
The list of categories of Owners of Trademarks
Owners of trademarks in India fall into the following two groups:
- The Trademark Registry is wherein trademark holders register their brands. It falls under one of the trademark owners’ groups.
- Unregistered trademark owners have not submitted their trademark applications to the Trademark Register. Being trademark owners, they are in a special club.
Major Differences Between Unregistered and Registered Trademarks
| Criteria | Registered Trademark | Unregistered Trademark |
| Legal protection | Registered trademarks provide the owner with legal protection under trademark law. | Unregistered trademarks do not provide the owner with legal protection. |
| Trademark registration | Registered trademarks are officially registered with the government. | Unregistered trademarks are not officially registered with the government. |
| Evidence of ownership | Registered trademarks provide evidence of ownership. | Unregistered trademarks do not provide evidence of ownership. |
| Exclusive rights | Registered trademarks give the owner the exclusive right to use the trademark in a particular jurisdiction. | Unregistered trademarks do not provide the owner with the exclusive right to use the trademark in a particular jurisdiction. |
| Infringement action | Owners of registered trademarks have the right to take legal action against violation. | Unregistered trademark owners don’t have the right to take legal action against infringement. |
| Recognition | Registered trademarks are acknowledged by the government, courts and the people in general. | Unregistered trademarks are only acknowledged by the general public. |
| Renewal | Registered trademarks must be renewed every ten years. | Unregistered trademarks do not have to be renewed. |
Advantages of Registered and Unregistered Brands from a Legal Perspective
1) A “Registered Trademark” provides exclusive right in a certain region is conferred upon registration:
- They improve the product in some way.
- It is economical.
- It safeguards the branding and advertising expenditure.
- It guards against deceptive business practices.
2) An “Unregistered Trademark” offers no benefits. Under the Trademark Act, unregistered marks (i.e., names, markings, or logos used by a business) are not restricted to goods or services. In such a case, it is essential to demonstrate that the unregistered mark has a similar reputation or goodwill towards the product, service, or enterprise.
Rights of Unregistered Trademark Holder/Owner in India
The right to stop another company from exploiting an identical or strikingly comparable trademark in a manner that leads to passing off applies to the holder of an unregistered trademark. To achieve this, the owner may bring a common law action. The claimant may also move for an injunction in order to request an accounting of profits or losses.
To launch a complaint against passing off, the plaintiff must fulfil these three requirements:
- He has gained a reputation with his trademark.
- The defendant engaged in deceptive behaviour.
- Because of the defendant’s actions, the claimant has endured or has the potential to suffer damage.
Rights of Registered Trademark Owners
It is not required to register your trademark. But registration gives you greater rights than an unregistered trademark. The rights listed below are available to holders or owners of registered trademarks.
1. Exclusive Use Rights
Pursuant to the remaining provisions of this Act, Section 28(1) stipulates that, the sole authority to use the trademark in connection with the goods and products for which it was registered in specific circumstances. Each owner of a trademark that is registered under several names will have the same rights as other users who have not registered their names.
2. The Registered Trademark Owner’s Right to Own a Similar Trademark
According to Section 28(3), unless their respective rights are subject to conditions or limitations entered on the register, none of the registered owners of two or more identical or nearly identical trademarks shall be deemed to have acquired the exclusive rights to use any of those trademarks by virtue of their trademark registration. All those people, however, have the same rights as other people, with the exception of registered users who exercise their rights as authorized users in the same way as if they were the only registered owners.
3. Right to Possess statutory Remedies for Violations
Additionally, Section 28(1) specifies that in the event of trademark infringement, the registered owner of the brand may pursue legal action in the ways specified by this Act. An injunction and, at his option, damages or an account of profits can be obtained by suing the alleged infringer.
4. Right to Assign
Section 37 of the Act grants the owner of a registered trademark the right to assign the trademark and issue effective receipts for any fees associated with such an assignment. This is subject, however, to the Act’s provisions and any rights that appear in the register to belong to other individuals.
5. Right to Request a Register Correction
Any errors in the register pertaining to the registered proprietor’s details and other aspects of the registered trademark may be corrected by the registered owner of the trademark by submitting an application to the registrar.
6. Right to Modify a Registered Trademark
If a trademark owner wants to add to or modify their trademark in any way that doesn’t significantly change its identity, they must submit an application to the registrar. The registrar may refuse the leave request or approve it under any terms he deems appropriate.
Conclusion
When a trademark is registered, the owner is granted exclusive rights to use it; this is a more practical way to stop unlawful use than common law protection. In India, owners of registered trademarks may request injunctions, damages, accounts of profits, or other statutory remedies against infringement. To give them freedom and control over their intellectual property, they also have the ability to assign the trademark, request corrections to the register, and make changes. The valuable rights granted to registered trademark holders make the registration procedure, despite its potential expense and duration, an investment well worth making for the long-term protection and enforcement of their brand.
FAQs
1. What rights do trademark owners have under the law?
Trademark owners are endowed with plenty of legal rights, such as exclusive rights, rights to correct, and protection from third parties. These rights assist a company in creating a unique commercial brand identity.
2. Who should own a trademark?
The trademark owner should be the one to decide what kind and caliber of products and services are connected to the brand.
3. How do TM and registered trademarks differ from one another?
Unregistered or pending trademarks are denoted by the trademark symbol (™), whereas officially registered marks are denoted by the registered trademark symbol (®).
