This blog focuses on the difference between a registered trademark and an unregistered trademark in India. But before moving forward to this topic we need to understand the possible ways to protect a brand and its related matters in India by Trademark Registration in India and Copyright registration in India.
Brands in India are protected by Intellectual Property Rights and specifically by trademark and copyright law.
Trademark registration in India covers any word, name, symbol or design that is used to identify and distinguish the goods and services of one from those of another.
Copyright registration in India helps in protecting artistic design, logos, devices, and product manuals etc. We are not covering the aspect of copyright in this blog.
Trademark Registration is not readily available in the market which anyone can order or buy, trademark registration is not finished only by the filing of trademark application. It really takes a good amount of investment, time, hard work and money to get a trademark registration in India from which the brand reserves protection for years and helps them to protect the rights available.
Before we proceed to understand the differences, let’s take a glimpse at what registered and unregistered trademarks and their benefits.
Registered trademark means that the brand name, logo, symbol or design has been registered with the trademark registry by proceeding through the registration process specified under the Trademark Act, 1999 (hereinafter referred as Act). The application for registration can be filed via Section 18 of the Act. It is a proof of the distinctive identity of the goods or services and the end user can easily distinguish it from the other marks that are present in the market. Registration of a trademark not only gives security to the owner but many other benefits and exclusive rights for eternity with respect to timely Trademark Renewals in India under Section 25(1). Section 28 confers the exclusive right of using the trademark upon registration and relief can be obtained in case of infringement of the trademark.
Advantages of Registered Trademark:
- To secure a legal status.
- Trouble-free advertising and branding of the goods and services.
- To alert the public from buying duplicate products.
- To create a monopoly of the brand.
- To create commercial goodwill.
- To be able to file for international trademark registration.
- For easy identification of trademark products. The symbol of the registered trademark is ®.
Let’s understand these benefits by the example of Burger King. Burger King, an American brand, is using this name since 1954 in all over the world and in India since 2014. One person began to use ‘King Burgerz’ which appears similar to the ‘Burger King’. Burger King Corporation then filed a case against the latter. The court held that, the addition of letter ‘z’ at the end is a tactic to confuse and deceive the public to assume it to be Burger King. Because Burger King is a registered trademark, it is entitled to protection against infringement by a person who uses similar mark which could be deceptive and misleading.
Moreover, if your trademark is registered in India’s IP office, it forms a basis to file for registration of an international trademark and one can file his trademark in multiple countries, all while sitting in India under the Madrid- International Trademark System. The international trademark is registered by World Intellectual Property Organisation (WIPO). This advantage can be availed only when your trademark is registered in your home country.
Unregistered trademarks are those trademarks which are not registered with the trademark registry. It does not let an owner of a product relish any security, rights and legal benefits. Section 27(1) of the Act also states that no action lies if there is an infringement of an unregistered trademark.
Difference Between Registered and Unregistered Trademark
|Basis||Registered Trademark||Unregistered Trademark|
|Legal Status||These marks are legally registered under the Trademark Act, 1999.||These are not registered under the Act and do not possess any legal status under the statute.|
|Burden of Proof||The registration certificate of the trademark is valid proof in itself.||The burden of proof for the validity of the mark lies with the owner.|
|Symbol||The owner having a Registered trademark can finally use the ® symbol beside the mark, it reserves the unique rights on that name.||The unregistered trademark can only use ™ beside the mark to show that his rights are reserved and no one shall use it.|
|Remedies Available||Any kind of infringement can be dealt with the legal rights created after the trademark registration.||The only remedy available is that of common law in torts.|
|Geographical Benefits||The registered trademark gets protection all over the country.||The owner of an unregistered mark does not enjoy such benefits.|
|Protection||The registered trademark reserves protection for 10 years and can be renewed.||The unregistered trademark gets no such protection.|
|International Trademark Registration||The prior condition to protect your brand internationally is that the trademark must be registered in the home country as then only an application for international trademark registration can be filed before WIPO.||No such international protection of trademarks can be availed by a proprietor of an unregistered trademark.|
 Burger King Corporation v. Mr Shameek & Anr., CS (COMM) 181/2016, (Delhi High Court, 02/05/2016).