Section 34 protection of the previous user's rights

Section 34 states unequivocally that a registered user—that is, the registered owner of an identical or confusingly similar mark that has been given logo registration for identical or comparable goods or services—shall not infringe the rights of an earlier user as provided by the Act. As a result, the rights of an earlier user of a trademark are preserved and are superior to those of the registered owner of a trademark who received logo registration later. However, the prior user must fulfill the following crucial conditions in order to be eligible for the benefits under Section 34:

1. For the owner to be considered the prior user, the trademark has to be "used."
2. The owner of the trademark must continuously utilize it inside the borders of India.
3. Use of the trademark is restricted to the goods and services specified in the application filed by the registered proprietor.
4. The trademark must have been in use earlier than the date on which the registered proprietor or subsequent user began using it.

Previous user who hasn't registered it yet has the advantage

A few important points are:

1. The trademark must to be consistently used.
2. The owner of the trademark should use it to make money.
3. It is recommended that the trademark be used before it is registered.

A few things have been around for a while and are still in use, yet someone else with a comparable product registers it as a trademark. According to Section 34 within the Indian Trademark Act, no arrangement under the Act may permit any registered brand name owner to violate any individual's rights involving any such similar brand registration name for a period of time prior to the date of the new trademark's enrollment or the later brand registration name's first logo registration.

Impact of a trademark registration

The "registered proprietor receives a sole right to utilize a trademark to be associated with the goods or services that in regard to which the trademark is registered" once the mark's valid registration. The Registrar will specify the terms and restrictions that apply to this "exclusive use of a trademark" right. Trademark infringement would occur in the event if a third party, not authorized by the owner of the mark, used a mark that was identical to or similar to the registered mark in the course of his own business. Therefore, the only people who can seek redress for trademark infringement are the registered proprietors. "No person is allowed to institute proceedings to avoid or recover penalties for violation of an unauthorized trademark," the Act stated unequivocally.

But the Act acknowledges that "the trademark owner has the common law right to take action over any person who passes off goods as the products of another individual or as services offered by another person." The Act is very explicit about the circumstances in which two or more individuals are registered owners of similar or identical trademarks: none of them shall be entitled to use the exclusive rights granted upon registering by the Act in conjunction with one another. Since he is the only registered owners of the trademark, both registered proprietors may equally use the exclusive rights granted upon logo registration against any other infringer.

It becomes evident from reading the pertinent registration-related regulations that the owner of a registered trademark has rights that are greater than those of a registered user. But frequently, the question comes up as to whether the owner of a registered trademark has more rights than the owner of an unregistered trademark in situations when the unregistered owner has used the trademark previously. Or, even in the event that both mark users are registered with identical or similar marks, which party's rights will take precedence if one unregistered user of the mark had previously used the trademark.