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TRADEMARK RIGHTS : SIMILAR MARKS : SEC 28 OF TRADEMARK ACT, 1999

Once a trademark gets registered, it gives an exclusive right to the owner to use the said mark with exclusion to all others. It means that registeration of a mark grants an exclusive right to the owner of registered mark. Such right is vested in accordance with Sec 28 of the Trademark Act, which in simple language says:

1. A registered owner has the right to use the mark in exclusion to all others.

2. Where two persons has got registered same or very identical marks, then they both shall have the right to use the said mark in exclusion to all others except among themselves. In other words, it means that if two or more persons got registered same mark for goods/services in same class, then they all can restrict everyone else from using it, but they cannot restrict each other.

The above scenario can be explained with the help of the following example:

 Suppose 'A' is the registered owner of the mark ABC in class X, and 'B' is the registered owner of the mark  ABC in class Y, then both A & B shall have their exclusive rights to use the said mark in exclusion to all. Now, suppose B enters the class X, in which A has already registered its mark, in such a situation A can approach the court of law to restrict B from using the said mark ABC in respect of the class X, where A is the registered owner.

NOW LET US DISCUSS THE OTHER SITUATION, where both A and B are registered owners of the mark ABC, in same class say Z. In this case, both A and B being registered owners, has full rights to restrict everyone to use the mark ABC under class Z but they are not allowed to restrict each other to use the said mark in accordance with Sec 28(3) of the Act. Thus, both A and B shall have rights to use the mark ABC under class Z, till any one of them files rectification and changes to his/her mark.

I hope the above information will be helpful in recognizing the rights granted to registered owners of similar / same trademark.            

Comments

  1. Kailash Madan4 January 2023 at 19:24

    Similar/same trade mark confusion is always a point of litigation, very apt info. Thanks

    ReplyDelete
  2. Anonymous4 January 2023 at 21:46

    Thnx Mr. Madan for your valuable feedback.

    ReplyDelete

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