Every business must seek to protect its identity and the first step towards that aim is through the registration of a company’s trademark. It is perhaps one of the safest ways to ensure brand safety against a possible infringement of marks. It offers advantages for small and medium-sized enterprises – but geographically constrained. This means that the protection under registration of the trademark is only limited to the country in which it is registered. Marks law is territorial, which means that the national registry of marks does not grant trademark rights in other countries.
Considering you did trademark registration in India and you are opening your company in Australia. You will not have the right to prohibit other firms from filing the same trademark in Australia. In other words, you do not have a right to defend your trademark in the country where it is not registered. Moreover, in one country, obtaining rights does not guarantee successful registration.
Regardless of the country, it is best to know the trademark law limitations before planning to register one in the foreign land.
It is impossible to trademark everything. You need to know that trademark registration can only protect those products.
What to register for trademark?
Any factor which improves usability or functionality is not typically covered. If you market a product in special packaging or in a standard type, which is only to differentiate it, you can use a trademark to do so. However, if such a form or packaging improves the usability of the product, registration is not possible. This law helps to keep companies in fair competition.
Trademark is territorial where the country for which a specific trademark is valid shall be determined by geographical boundaries. Only Indian jurisdiction applies if the registration of the mark is carried out in India. In order to secure the right to immunity in other countries, it is necessary to file a distinctive foreign application. Notice also that the geographical indication is different from the geographical location.
A geographical indication is a distinctive IP protection, which varies from the protection of the trademark. Trademark typically helps to differentiate between products and services from those on the market while the geographical distinction helps to recognize the products of a given place or area. E.g.; geographical indications include Darjeeling Tea where Darjeeling stands to indicate origin of the tea.
Difference between Trademark and Geographical Indication:
|This may help to recognize services or products belonging to a specific brand, business or individual.||It represents the origin of goods.|
|Can mark word, logo, number, appliance, etc. mark.||The trademark is linked to a geographical area.|
|Can give or grant anyone anywhere in the world the right to use it.||No such provision licensing or assigning any person outside the region or place of the producers the use of the product name.|
|May register products and services trademarks.||These can be registered only for products.|
Fair Use Limitations
Under the trademark law, the demand for exclusive rights to widely used terms is limited if the same would be interpreted in a particular sense. It includes logos used in scientific journals and in publications for comparative advertising, media coverage and also the use of non-commercial trademarks.
Now if you want to claim exclusive rights for your company over these trademarks, it is not permitted. This is particularly when a third party uses your registered trademark in accordance with the fair use doctrine. For example, “Coca-Cola” trademark owners cannot prevent others from using the word “cola” for their company registration.
Parallel Imports Limitations
Parallel imports are deemed to be a legitimate activity under the Trademark Act so that parallel imports are not stopped by other parties. Someone can import products from other countries without the permission of a domestic trademark owner and sell them in his country. The importer can now also sell them at lower rates and the proprietors of trademarks cannot claim the rights under the trade mark law.
The same also has no right to prohibit the selling of products in any part of the business later. It is because the rights of the owner of the mark over the goods do not exist any longer after the first sale has been completed.
Although certain drawbacks are attached to the registration of marks, it is still important to do so because it will give your company a huge boost. This gives the business a certain respect that appreciates the product. For a trademark it is possible to prevent an illegal use of the logo, as it defines common trademark limitations. It is best to consult professionals such as LegalWiz.in for trademarks and IPRs to understand the limitations of your mark before it is registered. Although certain drawbacks are attached to the registration of marks, it is still important to do so because it will give your company a huge boost. This gives the business a certain respect that appreciates the product. For a trademark it is possible to prevent an illegal use of the logo, as it defines common trademark limitations. It is best to consult professionals such as LegalWiz.in for trademarks and IPRs to understand the limitations of your mark before it is registered.