It is very important from the consumer point of view to know the source of the product. In this way, we can define Trademark as a visual mark which works as an identity for goods and services and indicates their trade origin.
It is important for you to secure your trademark as it serves as your brand identity, and trademarks help your customer to recognise you in the crowded marketplace. You should register your trademark to protect your brand.
Normally people file a trademark application when their business start growing and they realise that now the brand name should be protected. So, the one thing is clear that generally entrepreneur file a trademark application to register that mark which they have been using already.
It means trademark application can be filed at two stages; one is prior to launching a product or after launching a product.
One the application is filed and in the absence of any trademark objection the application finally gets registered.
When the application of trademark is filed on a proposed basis, the intention of the applicant must be clear to use the trademark in the future; otherwise trademark registration can be cancelled on the grounds of non-usage if there is no usage within 5 years from the date of its registration.
In reality trademark registry hardly takes such action to enforce the rule but they definitely take action if any third party files petition in this regard.
When the application is filed on proposed usage basis, then the burden of proof to establish the fact that the trademark is used in India is upon the owner (plaintiff) in a case of infringement cases.
What actually is “use” of the trademark?
Use of a trademark in India is basically availability about the statement of the product or services on which the trademark is proposed to be used.
Even the Indian judiciary has time and again interpreted the term use in different ways:
- Small promotional and marketing of the product bearing the mark are sufficient to establish a use of the mark. The amount of sales does not matter in this regard.
- Even using a mark on the internet amounts to usage in India.
Usage of trademark plays a very important role in your trademark protection strategy in India.