“Creativity is the fuel of innovation, and Intellectual Property is its protection”, as rightly quoted by Victor Hugo. Every business makes a brand for their innovation and represents it using an attractive logo or symbol, with the help of which the general public remember the brand and are drawn towards buying its products. Therefore, the businesses try very hard to make their logo look very attractive as it is the human tendency of the consumers to buy something which pleases the eye. Hence, Trademark is the legal protection which is granted to one for preventing another from using or copying the same logo. In this blog we will be discussing the validity of a non-use trademark.
What is a Trademark?
In order to understand the main topic of the validity of a non-use trademark, it is essential to
understand what is trademark first. Trademark is one of the types of IP Right, which provides legal protection to the logo, which represents a brand, from being copied. Hence, trademark registration on www.ip.india.gov.in is a must in order to prove that you and only you have right over your brand. And if any other person creates the same kind of logo, then one has a legal remedy against it.
General Validity Period of a Trademark?
After successful registration of Trademark on www.ip.india.gov.in , a question arises as to
How long will this trademark registration last for? The answer to this is a span of 10 years from the date of filling of the application form. Another question that must have come up to your mind is what will happen after the expiry of 10 years? The answer to this question is that the registration must be renewed after its expiry, by filling an online Trademark Renewal Application.
Understanding Non-Use of Trademark
In spite of the Registration, what if the proprietor still does not use the Trademark? This is
where section 47 of the Trademark Act, 1999, comes into play. It says that the “Registrar can
remove the trademark from the Register of Registration, if the trademark is not used from
a long time. The following conditions have to be fulfilled in order to avail benefit under section 47 of the Trademark act, 1999:
Proprietor has no Intention to use the Trademark
When the proprietor of the business has no intention to use the trademark after getting it registered, then it can be removed by the registrar of trademark. Let’s see this with the help of an example:
“Z” registered his trademark but did not use it. “X”, a competitor can file an application to the registrar asking him to remove the trademark as Z does not intend to use it.
Proprietor has not used the Trademark Since 5 years
If the proprietor of any business has registered its trademark but it has not been in use since the last 5 years then in that case it will be considered as the non-use trademark. Let’s see this with the help of an example:
“Z” has registered a trademark in 2015 but did not use it till 2020, therefore “X” can file an application to the registrar asking him to remove the trademark due to its non- usage for a period of 10 years.
Validity of a Non-Use Trademark Under Trademark Act of 1999
There are some cases where the Proprietor enjoys the benefits of Trademark Registration,
in spite of not using it, which . There are 3 cases where validity of a non-use trademark has been mentioned. There 3 cases has been given below quoting examples:
First Case
Z, has obtained Trademark registration but wants to enjoy it only after his company called
XYZ is formed. So, till the time his company is not set- up, his non- usage of trademark will
be considered to be in good faith and therefore, his trademark registration too will not be
Removed. In such scenarios validity of a non-use trademark is there till the company of the individual will be formed.
Second Case
Now comes to the second case which makes the validity of a non-use trademark lawful up to a certain extent of time. This is the second exception of the Section 47 of the Trademark Act of 1999. Lets under it with an example. If Z voluntarily wants the trademark to be used and registered with another person, then until it’s done, the trademark non- usage will not lead to the removal of the trademark.
Third Case
Now comes to the third case which talks about the validity of a non-use trademark. If non- usage of a registered trademark is not caused due to the fault of the proprietor (Z), then it cannot be removed by the registrar and the validity of a non-use trademark will be continued. In certain cases, such as passing of a new law or some unforeseen situations (such as covid19 pandemic) hinders Z from using the trademark, then the registrar has no right to remove the trademark based on the lack of usage.
When Should You Start Using a Registered Trademark?
There is no law which specifies when a trademark should be used after the registration. However, the earlier one starts to make use of it, the better it is, as this leaves no chance for any opposition from being raised by any person. It must also be kept in mind that the usage must only be bonafide. Bonafide in simpler terms, means “genuine”. This means that the trademark must only be used to reach out to the general public, in order to increase the sale of the products in good faith i.e., the usage must not include any kind of fraud or concealment which may lead to legal consequences.
Conclusion
In the present blog we have discussed main points related to the validity of a non-use trademark. Now it must be clear that after the trademark registration its usage is necessary. If your trademark is registered, it means that no other person can misuse it i.e., YOUR BRAND, YOUR RIGHT. In order to know whether a brand has its trademark registered, one can view a (®) symbol beside the logo. The presence of this symbol proves the registration of trademark. It must also be kept in mind that if a trademark is registered, then it must be used in good-faith, as its non- usage leads to the cancellation or removal of its registration, which has certain exceptions discussed above.
