What happens if I have a trademark without registering?
Trademark registration provides protection and exclusive rights to the owner of a Trademark in relation to his goods and services used commercially.
A Trademark differentiates the identity and brand name of a business and separates the goods and services of a business from that of other similar goods or services in the market.
If your Trademark is not registered, it can be easily infringed upon by someone. In such case, you cannot file an infringement suit, but only claim remedy for passing-off. Passing off in trademark is when infringement of an unregistered trademark happens. The mark is not only deceptively similar to the trademark of other company but also creating confusion for the customers, which ultimately results in damage to the business of company.
Legal Remedy In Case Of Passing Off
The trademark owner can file a suit in district court/ High Court within the local limits of the jurisdiction, where the person instituting actually and voluntarily resides or carries on business or personally works for gain.
Where the passing off does not involve the use of trademark or where there is no sale of goods, the suit may be filed in a subordinate judge’s court or a court of superior to it. The plaintiff in a suit for passing off must be the owner of an unregistered trademark which has acquired reputation in relation to some goods or the owner of the goodwill in a trade name, or get-up relating to some goods or business or profession.
The defendant in the suit must be a person who has passed off or whose activities are likely to pass off his goods or business as the goods or business of the plaintiffs. Passing off actions may be instituted by many plaintiffs in a representative capacity provided there is a common interest, common grievance and a remedy beneficial to all. The rules governing the preparation of the plaint and the subsequent proceedings are the same as in any other suit and are governed by the Code of Civil Procedure.
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