Can unregistered trademark be protected from passing off?

Can unregistered trademark be protected from passing off?

Passing off is a common law tort, which can be used to enforce unregistered trademark rights. The law of passing off prevents one person from misrepresenting his goods or services as that of another… Passing off is a common law tort, which can be used to enforce unregistered trademark rights.

Is an unregistered trademark enforceable?

When a party begins use of an unregistered trademark, common law rights may automatically apply. Although these are limited to the geographic area of such use, they are enforceable in essentially the same manner as rights in registered marks.

Is there infringement protection for unregistered trademarks?

However, an unregistered trademark does not possess the statutory right of infringement. However, the registered trademark possesses a statutory right of infringement. Hence, it is advisable to get trademark registration owing to its evidential value and the incentives provided.

Is passing off illegal?

Passing off is a common law cause of action, whereas statutory law such as the United Kingdom Trade Marks Act 1994 provides for enforcement of registered trademarks through infringement proceedings. Passing off does not confer monopoly rights to any names, marks, get-up or other indicia.

What trademark Cannot be registered?

Section 13 and 14 of the Act provides that trademarks containing specific names cannot be registered. Trademarks which have a word that is commonly used of any single chemical element or chemical compound in relation to a chemical substance or preparation cannot be registered.

How do you protect an unregistered trademark?

Represented by the trademark symbol TM. Countrywide protection is available by registration. Owner need to prove the area in which it has gained the reputation of his unregistered mark.

How do I protect an unregistered trademark?

Such unregistered mark can still be protected under common law tort of “Passing off”. Thus, owner of an unregistered trademark may be able to prevent use by another party of an infringing mark pursuant to the common law of passing off.

What is the difference between trademark infringement and passing off?

In an action for infringement, the Plaintiff on account of it being a registered trade mark in dispute claims to have an exclusive right to use the mark concerning those goods. However, a passing off by a person of his goods as those of another, in essence, is an action of deceit.

How do I protect against passing off claim?

If you are successful in a passing off claim, there are several remedies available. You can: apply for an injunction to prevent the business from using your trade mark or goodwill. apply to have the infringing goods destroyed.

Under what grounds TM registration can be denied?

A Mark shall not be registered as a Trade Mark if it causes: Confusion or deceives the public; or. Hurts religious susceptibilities of class/ section of citizens of India; or. Comprises/contains scandalous/obscene matter which is against the morality of the public; or. Is prohibited under the Emblems and Names Act.

What happens if a trademark is refused?

If the registration is refused the applicant has the final option of appealing to the Intellectual Property Appellate Board (hereinafter referred to as IPAB). The appeal must be filed in the prescribed manner following the TradeMarks (Applications, Appeals and Fees to the Intellectual Property Appellate Board) Rules.

Why is it unfair to pass off an unregistered trademark?

Laws concerning unregistered marks are derived from a common law English business principle: If someone attracts customers (known as “consumer goodwill”), then it is unfair for someone else to falsely pass off products or services with a similar name.

What’s the difference between a trade mark and a passing off?

Both the law of passing off and registered trade mark law protect trademarks, but: passing off has a far wider application to unlawful conduct than registered trademark protection. Here are some of the differences between registered trade mark protection and unregistered trade mark protection…

What’s the difference between a trade mark and a registered mark?

In trade mark infringement cases, the only relevant confusion is between: the claimant’s trade mark as it appears on the relevant Register of Trade Marks – ie in its registered form, when compared to the trade mark used by the competitor. In contrast, depending on the facts of the case, the law of passing off:

How can I stop someone using my trade mark?

You may be able to stop someone using a similar trade mark to yours on their goods and services (known as ‘passing off’), even if you have not registered it. You’ll usually need to get legal advice from a trade mark attorney. It’s harder to prove passing off than it is to defend a registered trade mark.