At times it is tough to obtain the proper trademark on your products or services. Imagine finding the most perfect trademark for your company and finding it’s already registered but not used. You may wonder whether you could still use it. Let us discuss what’s a dead or abandoned trademark and if you can register it and work with it in India?
What’s a Trademark?
A trademark is a sign, symbol, sign or combination of these which sets your product or service different from those provided by others in the industry. It provides your brand identity and provides you with the ability to use your brand name entirely. Trademarking can safeguard your brand and stop others from using your logo or brand with no authorization.
Why Register a Trademark?
The reason for trademark registration are:
- Brand Protection: It distinguishes your brand and also stops other people from making use of a similar mark that might cause confusion.
- Legal Advantage: It protects you from fraudsters who’d want to copy your brand.
- Market Differentiation: This can help you distinguish your services and products from your competition.
- Brand Recognition: A distinct trademark creates memorable impressions on customers and increases brand recognition and loyalty.
What Is Trademark Abandonment?
Trademark registration abandonment happens if the proprietor of a trademark does not keep or even restore it. A trademark might be abandoned or dead in several situations in India:
Failing to Renew
Each registered trademark in India is valid for ten years and also needs to be renewed at the conclusion of this time. In case the proprietor doesn’t renew the trademark even after a grace period of 1 year out of the expiration date, the trademark is disposed of.
Failing to Respond to Opposition
Anybody can oppose a trademark published in the journal of trademarks within three months. In the event that the owner doesn’t answer the opposition within 2 weeks or fails showing up for the hearing, the trademark is dead.
Failure to Respond to Examination Report
An examiner examines a trademark application for accuracy and issues an examination report with objections in case any. In the event the owner doesn’t reply to this particular report within thirty days or does not appear for a hearing, the trademark status becomes dead.
Generic Use
In case a trademark is simply too generic and loses its distinctiveness, it might become way too widespread to be regarded as a trademark and dead.
Can You Use an Abandoned Trademark in India?
You can register an abandoned trademark in India but there are certain conditions and steps.
Steps to Register an Abandoned Trademark are:
- Thoroughly Search: The first and foremost step is searching for the desired trademark anyplace in India. This particular search ought to include all Indian trademark databases, company listings and the web to ensure the mark isn’t used by anybody else.
- Establish Non-Use: You must prove the trademark hasn’t been used with regard to its services or goods for 5 years. This includes proving the original owner hasn’t used the trademark commercially.
- File the Necessary Forms: If the trademark is declared abandoned, you need to submit a new TM-A application form. This form can be obtained on the Intellectual Property India Office (Online) site: FORM TM A.
- Resolve Objections: In case anybody objects to your application, you have to respond fast. This could include supplying evidence of non-use or even appearing for hearings where required.
- Publication & Opposition: The application and trademark will be posted in the Journal of trademarks. Others might oppose the registration during this particular time. In case there’s no opposition (or you counter any opposition) the trademark goes to registration.
Conclusion
Using an abandoned trademark is often an alternative for businesses searching for a distinctive brand identity. Nevertheless, follow the legal steps to make certain the trademark is really offered for registration and use.
By searching, creating non-use, filing the correct forms and responding to objections you can register and utilize an abandoned trademark in India. This particular process assists in securing your brand name, legality & brand recognition in the marketplace.
FAQs
Can I make use of an abandoned trademark in India?
You may use an abandoned trademark in India. But you have to ensure it isn’t in use and it’s genuinely abandoned – by conducting searches and completing the legal requirements to register it as yours.
How to restore an abandoned trademark?
You must file a TM-R form for renewal or a TM M form for some other amendments to restore an abandoned trademark, cite a non-response or non-renewal reason, and also pay costs to bring back the trademark. The authorization by the Registrar of Trademarks is needed.
What does it mean when a trademark status is abandoned?
Whenever a trademark status is marked as abandoned, the proprietor hasn’t taken action to keep and restore it, for example not answering complaints or perhaps not renewing the trademark within the allowed time.
Can a trademark be used without registering?
A trademark might be utilized with no registration but doesn’t offer exactly the same legal protection. Registered trademarks grant exclusive rights and greater legal recourse against infringement whereas unregistered trademarks depend on common law rights.
What if a trademark isn’t used?
In case a trademark isn’t used for a continual five years from the day of registration, it could be challenged and taken off the registry. Non-use can lead to the trademark being regarded as abandoned or even revoked.
