Claim Prior User Date for Trademark
Trademark is a unique name, logo, symbol or tag line that is used to distinguish the goods and services of one person from others. With the Trademark registration come the exclusive rights of production, selling and distribution of goods and services by using the registered mark. There are number of aspects related to the Trademark that needs to be understood by the people applying for it. Today with this blog we will understand the concept of Prior User date with respect to the Trademark registration in India.
What is the user date?
Before understanding the true importance of claiming the prior date user it is imperative for us to know the meaning of user date with respect to Trademarks. The user date of the trademark is basically the date from which the mark is being used for the goods and services by the applicant. This usage should be continuous and comprehensive in nature. This means that in order to establish a date as the user date the applicant must use the mark with respect to the specified goods since that day only and that to on continuous basis.
What is the regulatory provision for Prior User date?
According to Section 34 of the Trademarks Act, 1999 “the proprietor of registered trademark or a registered user cannot interfere with the use of any identical or similar mark if the person has been using the mark from an earlier date”. Decoding this provision we can state that the person who is using the mark from the prior date holds the exclusive right on the trademark irrespective of its registration status. Thus, nobody can interfere with the rights of the prior user.
What is the passing of Action?
Passing of action is the right given to the unregistered owner of the trademarks who are using the said trademark from prior basis against the registered owner. Under the Section 2(72) of the Trademark act 1999 the right is given to the prior user of the Trademark to take a passing of action against anybody misusing his rights including the registered owners. However, in addition to this the below mentioned factors are also to be considered for ascertaining the correctness of the claims made –
- The Trademark in respect of which action is supposed to taken should be used continuously in India for claiming the prior date rather than the selective time period usage.
- The goods and services with respect to which the trademark is proposed to be used must be similar to the goods and services of prior user.
- The proprietor himself must use the brand name for claiming the prior use.
- The said mark must be used by him from the date prior to the date of application for trademark registration.
All of these conditions must be satisfied in order to satisfy the claim of passing off action. There must be the presence of various material evidences for demonstrating the prior use.
To sum up the whole blog we can just say that it is very important to claim the prior usage date for the trademark in order to get the Trademark Registration seamlessly and keep the rights intact even after registration.