The rights in a trademark in
India will be the person or company that makes the first use of the trademark
within the territory. Although it is not mandatory to register the trademark in
India, in practice it is highly recommended that it be done. It is so that
whoever registers it enjoys a legal presumption regarding the ownership of the trademark registration fees in India,
prevent future claims regarding ownership of the same and facilitate the
presentation of actions in cases of trademark infringement or trademark abuse
by third parties.
It is not required that a
trademark has been previously used in India for registration. However, use of
the mark may be useful in overcoming objections based on lack of
distinctiveness. Prior use of the mark may serve to demonstrate that it has
acquired distinctiveness through use.
It is recommended to file a
trademark use declaration during the term of a trademark. The intellectual property registration in India
is done through the General Controller of Patents, Designs, and Trademarks
of India. If you register a combined mark (including both word and figurative
elements) in India, the exclusive right to use the mark is limited to a use of
the mark in the configuration or exact mode to which it has been registered.
If you want to use the word
elements of your brand separately from the figurative or design features (or
vice versa), it is advisable to register another mark that includes only those
elements that you want to use separately.
It is important to note that if a
third party eventually tries trademark registry India that includes elements that may be considered similar to
yours, in connection with similar products or services, as the owner of a
trademark will have the right to file an opposition action based on the similarity
that the mark of the third party has with his. The chances of success of such
actions will vary depending on the circumstances of each case.
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