Unregistered Trademark in India

Usually, it's seen that products and services are presented with certain marks, which act as a visual identification of such products. The marks used by the companies are a unique representation of their goods/services that can easily be copied and used by other groups.

To make sure we protect the unique mark, trademark registration was introduced. But it is not always mandatory to obtain legal registration of the mark. Marks can be registered or unregistered. This article sheds light on the status of the unregistered trademark regarding present law.

What are the elements of an Unregistered Trademark?

Essential elements of an unregistered trademark include:

• Registration is not obtained under the Trademark Act 1999.
• The owner of an unregistered trademark uses the symbol "TM".
• It is protected by common law, not the Trademarks Act, 1999.
• Its protection lies in the product's reputation, which has to be proved by the owner. The owner must provide evidence for the use of such a mark in case of any dispute arising with an identical or similar registered trademark.

How can an Unregistered Trademark gain protection?

Where a person is using a mark that is identical or similar to a registered trademark, the user faces legal consequences. In the case of an unregistered trademark, relief in passing off action is available. The onus to prove prior use of such marks lies on the owner of the unregistered mark.

Section 34 of the Act also favors unregistered trademarks where such marks have been used continuously from a prior date. Thus the registered user cannot restrain the use of such unregistered marks.

What is the Disadvantages of an Unregistered Trademark?

It is apparent that with the registration of a trademark, the owner can take advantage of various provisions that can assist him in protecting his right over such a mark. Such provisions cannot be applied to the marks which are not registered. The disadvantages of an unregistered trademark are:

• It does not hold statutory benefit provided by the Trademarks Act, such as it cannot take action against infringement under Section 27 of the Act.
• It will not be able to gain recognition apart from certain limited regions. However, registered trademarks are recognized across the nation.
• The owner of the unregistered mark cannot use the symbol of "R", but can only use ‘TM’, which implies that the mark is not registered.
• The owner of an unregistered mark has to prove that he has used such a mark before the registered trademark in dispute.

Conclusion: 

From the above discussion, it is evident that an unregistered trademark owner might have to face hurdles while using the mark where not much legal protection is available to it. It might also not gain wide popularity compared to the registered trademark. Therefore, the owner must research the benefits of obtaining registration and take action accordingly.