Determination of Well Known Trademark by Registrar: Definition and grounds
“Well Known Trade Mark”: Definition and grounds
A Trademark shall not registered if it is identical or similar to any Well Know Trade Mark, But how to determine if any trademark is well known or not?
Let’s start with definition;
“Well Known Trade Mark”, in relation to any goods or services, means an mark which has become famous to the substantial segment of the public which uses such goods or receives such services that the use of such mark. click here to check list of well known Trade marks
{Section 11(6)} While determining whether a trademark is well known trade mark or not, the registrar consider all relevant fact into account including:-
(i) The knowledge or recognition of that trade mark in the relevant section of the public including knowledge in India obtained as a result of promotion of the trade mark:
(ii) The duration, extent and geographical area of any use of that trade mark:
(iii) The duration, extent and geographical area of any promotion of the trade mark, including advertising or publicity and presentation, at fairs or exhibition of the goods or services to which the trade mark applies,
(iv)The duration and geographical area of any registration of or any application for registration of that trade mark under this Act to the extent they reflect the use or recognition of the trade mark;
(v) The record of successful enforcement of, the rights in that trade mark, in particular, the extent to which the trade mark has been recognised as a well-known trade mark by any court or Registrar under that record.
{section 11(7)} The Registrar shall, while determining as to whether a trade mark is known or recognised in a relevant section of the public for the purposes of determination of well-known trade mark take into account:
(i) The number of actual or potential consumers of the goods or services
(ii) The number of persons involved in the channels of distribution of the goods or services,
(iii) The business circles dealing with the goods or services to which that trade mark applies
{section 11(8)} Where a trade mark has been determined to be well-known in at least one relevant section of the public in India by any court or Registrar, the Registrar shall consider that trade mark as a well known trade mark for registration under this Act.
{section 11(9)} The Registrar shall not require as a condition for determining whether a trade mark is a well-known trade mark, any of the following, namely
(i) that the trade mark has been used in India: (ii) that the trade mark has been registered: (iii) that the application for registration of the trade mark has been filed in India: (iv) that the trade mark--- (a) is well-known in : or (b) has been registered in; or (c) in respect of which an application for registration has been filed in. any jurisdiction other than India: or (v) that the trade mark is well-known to the public at large in India
Determination of Well Known Trademark by Registrar. — (1) Any person may, on an application in Form TM-M and after payment of prescribed fee, request the Registrar for determination of a trademark as well-known. Such request shall be accompanied by a statement of case along with all the evidence and documents relied by the applicant in support of his claim.
(2) The Registrar shall, while determining the trademark as well-known take in to account the provisions of sub section (6) to (9) of section 11.
(3) For the purpose of determination, the Registrar may call such documents as he thinks fit.
(4) Before determining a trademark as well-known, the Registrar may invite objections from the general public to be filed within thirty days from the date of invitation of such objection.
(5) In case the trademark is determined as well-known, the same shall be published in the trademark Journal and included in the list of well-known trademarks maintained by the Registrar.
(6) The Registrar may, at any time, if it is found that a trademark has been erroneously or inadvertently included or is no longer justified to be in the list of well-known trademarks, remove the same from the list after providing due opportunity of hearing to the concerned party.
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