Trademark Protection & Search - Busting the Myths
How and Who can grant you protection and on what basis ?
One of the great marketing words used to make you register the trademarks is "Trademark Protection", Some of the key questions the consumers of trademarks are missing is are you automatically entitled for "Protection", who gives you protection? Read one of the concepts of trademarks which are "Prior User".
Prior User Concept on Trademarks
When you file a trademark application, it goes through various stages and upon completion its called as "Registration". This registration is given based on one of the concepts called "Prior User" which means the said trademark (brand) have been using it for X years or months. I.e., one month or 2 years, etc. which needs to be specified at the time of hearing or examination reply if proposed to be used or in the trademark application if you are already using it.
Mere Trademark registration alone will not grant you protection under the law. You should be continuously using the brand to get protection under the law. This is the reason submission of an affidavit is required at the time of hearing in Trademark Registry.
You cannot claim rights over your registered or pending trademark without using it. According to trademark law, one has no right to sue others unless the person disputing himself uses the particular brand.
So does it mean trademark search is of no use?
It helps your take decision based on applications filed before the registry. It can be used to certain extend for your trademark clearance opinion and should not be considered as absolute one. Anyone can predict your clearance based on trademark search only to certain extent.
Your mark holds no value if you are not using your brand even if your trademark is registered. Granting registration doesn't prove that you are the first user of the said name because there can also be possibilities that someone else could be using your brand name longer that you without filing a trademark application and he have every right to claim his name back from you.
Who has the authority to grant protection?
Only Civil courts have absolute powers to give you protection and not the trademark registry. The courts by ad-interim application or by civil suits can give you protection subjects to the availability of the documents. Even unregistered trademark enjoy protection from courts under Common Law.