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TRADEMARK Registration

Different Forms Of Protecting Trademark

If the mark is registerable, then the best way is to protect it by registration and the infringement of the mark can easily be established. If the infringing mark is identical and the goods are same, then success in an action for infringement is almost certain unless the registration is attacked on the ground of invalid registration or the defendant establishes the honest concurrent user or acquiescence on the part of the registered proprietor or prior user. If the mark is not identical but only similar, then the plentiff will have to prove that the defendant's mark is deceptively similar, that is to say, the similarity is such as to be likely to deceive or cause confusion in the minds of the general public that the goods originates from the same source of plentiff. In the case of unregistered marks and marks which are not registerable, then the only way that they can be protected is by an action of passing off. The plaintiff will have to prove sufficient use of the mark so as to create valuable goodwill of the business connected with the goods. Criminal action against the infringers is possible whether the mark is registered or unregistered- Intention to deceive need not to be proved, evidence of fraudulent intention will be important factor in favour of the complaint.

Remedies Available:
  • Injuction, Restraining present & future use of the mark.
  • Damages.
  • An account of profits at the option of plaintiff.
  • An order for delivery up of the offending labels and marks for destructions.