Introduction
As markets proceed to grow and trade and business keeps on expanding, more and more trademarks are being registered worldwide. To be valid and significant, a registered trademark needs to be actively used. Long-term dormancy of a trademark raises questions about its authenticity and continued effectiveness. As a consequence, the owner of the trademark may be subject to implications, such as engaging in the trademark being removed from the official register or experiencing its protections restricted.
Elucidate Trademark Use And Non-Use
In trademark law, "use" refers to the mark's continuous usage in commerce, where it serves to identify and distinguish products or services. Non-use denotes an extended duration, usually five years, during which a registered trademark has not been actively utilized in connection with the designated products or services.
The Indian Trademark Act of 1999 (the "Act") did not define the word "non-use." Section 47 of the Act, however, considers trademark removal for non-use. In compliance with the Act, a trademark is considered to be dormant for five years after the date of trademark registration and ending three months before the date on which the removal application is filed.
Grounds For Non-Use Cancellation
Section 47 of this Act establishes the legal framework for such cancellations, which are as follows:
a. According to Section 47(1)(a) of the Act, if the trademark holder has not had a bona fide intention to use the mark in the market with regard to goods and services up until three months prior to the application to remove the mark, the mark will be removed.
b. According to Section 47(1)(b) of the Act, a trademark application is subject to removal from the trademark register for goods and services listed in the application for a continuous period of five years, complying with the date of registration and three months before the application date. However, presence in person is not required to demonstrate "use."
Exception To Non-Use Cancellation
The Indian Trademarks Act's Section 47(3) establishes exceptions for non-use of registered goods and services due to "special circumstances" instead of a lack of intent to use. Among the many unusual circumstances are restrictions on trademark use in India imposed by any legal provisions or rule.
Imposition of Limitations on Ground of Non-Use
According to section 47(2) of the act, other bona fide users may still use a similar mark in India even if the goods or services bearing the mark are not used in a marketplace-specific destination within India or are exported outside of India. To make sure that protection does not extend to areas where the trademark has not been used, the party who person gets treated unfairly by its registration may petition to restrict its registration. This halts the owner of the trademark from asserting rights in markets or regions where they are not actively using it.
Conclusion
Trademark strength can be greatly impacted by non-use. Maintaining the full extent of protection for a registered trademark requires regular use and proof of such use. This provision's primary goal is to protect bona fide trademark users from those who use them fraudulently. Appropriately, in order to avoid being removed from the register in accordance with Section 47 of the Trademarks Act, a registered trademark "must be used in relation to those goods or services" for which it was registered.
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