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Prior use v. registered trademark – An analysis of Section 34 of Trade Marks Act, 1999
By Anoop Verma, Raghav Sarda and Pulkit Doger
Indian Courts have number of times recognized that rights of the prior user in relation to the goods/services are superior to the rights of the registered proprietor in relation to the identical/similar goods/services. The article in this issue of IPR Amicus analyses Section 34 of the Trade Marks Act, 1999 which keeps on a higher ground the rights of a prior user of the mark than that of the registered proprietor of a trademark who is granted registration later. It highlights the key requirements that a prior user is required to meet and what the Courts consider in determining whether the ‘use’ requirements are satisfied. The article also discusses few examples of evidentiary documentation that can be used in establishing the use of the trademark in commerce. Discussing various case law on this topic, the authors strongly recommend maintaining proper records of the use of the trademark from the date, the trademark is put to use in relation to the goods/services as the use of the trademark plays a vital role in safeguarding the rights...
Statute Update
Biological diversity Act sought to be amended – Bill proposed in Lower House of Indian Parliament
Ratio decidendi
Trademark disparagement – Comparison pointing out deficiency of rival product slanderous and mischievous – Calcutta High Court also summarises key principles to decide whether the offending advertisement is disparaging or is a mere puffery
Conception of a competitive cricket league – No copyright in evolution of cricket over period of time – Delhi High Court
News Nuggets
‘Drivers24’ is prima facie identical or deceptively similar to mark ‘Cars24’
Addition of two alphabets before another mark when not makes material difference
False representation for registration of mark is fatal
