Intellectual PropertyTrademarks

What Is a Dead Trademark? Can We Use an Abandoned Trademark in India?

Sometimes it gets difficult to find the right trademark for your products/services. What if you found the right one already registered by someone else, but remains unused? Can you still register it? Let’s answer your questions.

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Firstly, What Is a Trademark?

Trademarking provides you legal rights to use your brand exclusively. A trademark is any unique sign, symbol, word, or combination of these. A trademark is something that gives your products and services a distinct identity in the market.

Why Should You Register a Trademark?

Most entrepreneurs register their trademarks. Let’s see why:

  1. To secure a firm position and identity of the brand in the market.
  2. Further, to gain a legal advantage over fraudsters.
  3. To differentiate your products and services from competitors.
  4. Trademark registration is important to protect your branding.
  5. The uniqueness of a trademark leaves a mark on the customers.

GET ONLINE TRADEMARK REGISTRATION

Now, What Is Trademark Abandonment?

In simple terms, if proper actions are not taken to secure your registered trademark, it might lead to trademark abandonment. Other cases where a trademark goes dead include:

  1. Delay in trademark renewal – Every registered trademark has a validity of 10 years, after which it has to be renewed. When you do not renew a trademark even after the grace period of one year from the date of expiration, your trademark status turns to ‘abandoned’.
  2. Delay in responding to trademark opposition – When an applied trademark is published in the journal of trademarks, anyone can raise opposition to it within 3 months of the date of publication of the journal. If the owner does not provide a counter statement to this opposition within 2 months or does not appear for the hearing, the trademark is deemed ‘dead’.
  3. Delay in responding to examination report – After applying for a trademark, the examiner checks for any discrepancies, and issues an examination report mentioning the objections. If the owner does not respond to this exam report within 30 days or does not appear for a hearing, the trademark status changes to ‘dead’.
  4. If the mark becomes too generic or loses its uniqueness, it might be deemed too common to be recognised as a trademark.

The Indian Trade Marks Act of 1999 allows for the re-registration or restoration of a dead trademark. You can now register a trademark that is abandoned, or dead in just three steps.

Steps to Restore or Register a Dead Trademark

If you wish to register an abandoned trademark, you might have to establish the non-use of the mark for 5 years with respect to its goods/services in the public domain. The registrar would then contact the original user and check for any objections.

  1. The first and most important step is to do a thorough digging to check if the desired trademark is in use anywhere in India. A thorough trademark search throughout all Indian trademark databases, business listing, and the internet is mandatory.
  2. In case the abandoned trademark is already in use by someone else, you will be required to file a fresh TM-A application.
  3. To restore a dead trademark, one has to file the TM-13 form.
  4. Once the application is processed, you will be the legal owner of your registered trademark.

If unregistered, anyone might take over your brand identity, along with your customer base. And the worst part is you wouldn’t have any legal rights to safeguard your reputation and your uniqueness in the market.

Why Approach Vakilsearch?

If you desire to be sure that the trademark you wish to register is unique, not in use, and get it registered without any hassle, let Vakilsearch help you. Vakilsearch’s experts will guide you throughout the registration process, from trademark search to successfully registering even a dead trademark. And soon you would be eligible to use the symbol ™ next to your trademark.

 

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