A trademark plays a crucial role in establishing a brand’s identity and driving business growth. A trademark can identify the source of goods and services. By registering your trademark in India, you can provide legal protection for your mark, as misusing a registered trademark is considered infringement. A trademark will distinguish your service and products from others. Sometimes, a business may not be able to find the relevant trademark that it desires. For instance, if a company sees an abandoned trademark that suits their purpose, then they can use it, but before using the abandoned trademark, they need to conduct a thorough search to determine if the trademark is truly abandoned or not.
What is an Abandoned Trademark? Is it Possible to Use an Abandoned Trademark in India?
In India, a trademark will be considered an abandoned trademark if the owner fails to renew it within the specified timeframe. Section 25 of the Trademark Act outlines that a registered trademark will be valid for 10 years, and after that, it can be renewed for another 10 years by paying the specified renewal fee. So, when a trademark owner does not renew a trademark within the specified time, then the trademark will be abandoned, and it will be available for use by other businesses.
The national office of the trademark registry does not recognise the abandoned trademark. In India, trademark abandonment can happen due to various reasons, such as if the applicant fails to satisfy the examiner, then the trademark will be abandoned. If the applicant fails to respond to the trademark registration requirements on time, the trademark will be abandoned. The trademark office may conduct an enquiry from time to time, and if the owner of the trademark continuously fails to respond to these enquiries, then the trademark will be deemed abandoned. A trademark will be abandoned if it is not used in commerce related to the specified goods and services. Trademark abandonment can also occur when the owner of the trademark loses a trademark opposition.
Key Factors that Businesses Should Consider Before Choosing an Abandoned Trademark for Registration:
- Indian trademark law allows the usage of an abandoned trademark by other businesses in the country. But to use an abandoned trademark, certain conditions should be met.
- It should not be used in a manner that could cause deception among consumers, and the mark shouldn’t compromise the distinctiveness of the existing trademark.
- The abandoned trademark should not be similar to any existing trademark. If the abandoned trademark is confusingly similar to a registered one, then it is not eligible for registration.
- Make sure that the mark is truly abandoned before using it; you can conduct a thorough search on the Indian trademark registry database.
- You need to prove that the trademark has not been used for at least five years and that the owner has not used the trademark commercially.
How to Register an Abandoned Trademark in India?
Prove that the Trademark is Abandoned.
To register an abandoned trademark in India, a business should prove that the proposed trademark is abandoned and has not been used by a person or entity in the country. Companies should ensure that no entity has been using the abandoned trademark for at least 5 years to avoid disputes. Also, due diligence should be conducted on the trademark to ensure that no one has any prior claim.
File Trademark Application
You can file a new trademark application if the above-mentioned details are satisfied. You need to submit a new TM-A application form, which can be obtained from the Intellectual Property Office of India.
Resolve Objections and Opposition.
Suppose there is any objection or opposition to the trademark registration during the publication. Then you need to respond quickly with the relevant details of the trademark, such as providing details regarding the non-use of the trademark.
How can Jitendra IP and Legal Services Help you with the Registration of the Abandoned Trademark in India?
A business can register for an abandoned trademark if it satisfies the regulations set by the Indian Trademark Act. One of the significant steps in registering an abandoned trademark is that the business should prove the non-use of the mark, and this could be a complex process; this is where Jitendra IP and Legal Services can help you. Our professionals will help you with the trademark search and also with the other formalities of the registration.
