Biswajit Sarkar Blog Trade Mark & Service Mark,Trademark Can You Register a Trademark which is Already in Use but not Registered

Can You Register a Trademark which is Already in Use but not Registered

It is an age-old concept that Prevention is better than cure. Thus, the registration of trademark is an added advantage to combat against any kind of trademark duplication. Duplication of trademark is a common phenomenon in the modern trade, especially in e-commerce platform. To protect the originality of the product of a company, the selection of appropriate trademark or registration of trademark is an important fundamental.

A business can move forward when there is an innovative or distinctive trademark by which public can easily identify the product in trade, a strong goodwill can be built up as well as an expansion of business. It is observed in the business that importance for choosing a right kind of trademark or protecting the trademark through trademark registration is not the on the focus for the common business people. Thus, an unregistered trademark or non-distinctive trademark is a stumble block for the growth of business due to rejection while the trademark registration process. An unregistered trademark may encounter a series of legal issues or may create an inconvenient position while combating against any kind of imitation of product or services.

To protect our intellectual property or inventions we need to make our property registered. A trademark is an intangible asset not an expense. Brand name of company will remain in existence till the date the company cease to operate. Sometimes a mark of a company like Adidas and their three-stripe mark becomes so renowned that people recognize the brand by their three-stripe mark and most repeatedly misjudge it with any other three stripe design. To protect our brand name and logo we need to register it with trademark.

If you are not a registered proprietor, then your brand name or logo or even the name of the company can not be protected by any trademark law. As a result, any other person can easily without any menace of being sued use a similar brand name for a similar business purpose. If your brand is not registered, then your will not get the benefit of a trademarked logo or name. if you are registering a similar trademark which is being used by others, you are likely to denied trademark registration. Though there is a slight chance of getting a registration on a similar name if the you register the name before them, ascertaining that you are the actual owner of the name.

Registration is a part of trademark but not a mandatory rule. It is left to the discretion of a person to decide whether he wants to opt for a registration or simply use their mark without being registered. As the brand name strength with the continuous use of it, hence, many people use the name before trademarking it.

If you find someone using your name which is still unregistered you may have the authority over the mark if you back up with evidence the fact that you were using the name prior the registration by someone else. You may have to notify the company which is using the similar name and may also have to file a trademark lawsuit for the same.

Having said that we need to keep it in mind that this protection is not absolute, moreover it is an advantage given to the registered proprietor. If anybody proves that they are using the same trademark prior to you, though you are a registered user you will not get the benefit out of it. The benefit is given to the original trademark holder and if your trademark is not original or unique and it is somehow has been created by someone else then by all means the trademark law will give him the benefit.

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