Trademark Used Since Date

While filing a trademark application in India, one of the information that must be submitted in the application is the trademark used since date. The trademark used since date can be a date in the past or "proposed to be used" - if the trademark owner has not began using the trademark. In this article, we look at the significance of the trademark used since date and the evidence that must be submitted for supporting the same.

Significance of Trademark Used Since Date

Though the trademark used since date plays a major factor in the trademark application, the courts have ruled that “If the competent authority finds that a significant proportion of the relevant class of persons identify goods as originating from a particular undertaking because of the trade mark, it must hold the requirement for registering the mark to be satisfied.”

Significance of Trademark vs Trademark Used Since Date

Thus, the courts have held that assessing the distinctive character of a mark is more important than the trademark used date. In assessing the distinctive character of a trademark, the following are taken into consideration:

The market share held by the mark;
How intensive, geographically widespread and long-standing the use of the mark has been;
The amount invested by the undertaking in promoting the mark;
The proportion of the relevant class of persons who, because of the mark;
Identify goods as originating from a particular undertaking;
Statements from chambers of commerce and industry or other trade and professional associations.

Annual Turnover Advertisement Spend

In determining the distinctive character of a trademark, annual sales turnover figures and advertising spend on the trademark are given special attention. If the period of use is shorter, the sales turnover for the period in question should be considerable, having regard to the nature of goods. The greater the turnover, the more likely it is for the mark to be accepted. Turnover, advertising and period of use are considered together - high turnover and/or advertising could compensate for a short period of use.

The words "acquired a distinctive character as a result of the use made of it" therefore mean the use made of the mark in relation to the goods/services for which it is proposed to be registered.

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Frequently Asked Questions

Common questions about Trademark Registration in India: Importance and Process.

The trademark used since date plays a major role in the trademark application process. However, the courts have ruled that the distinctive character of a mark is more important than the trademark used date. If a significant proportion of the relevant class of persons identify goods as originating from a particular undertaking because of the trade mark, it must be considered for registration.

The distinctive character of a trademark is assessed by considering factors such as the market share held by the mark, the intensity, geographical spread, and duration of its use, the amount invested in promoting the mark, the proportion of the relevant class of persons who identify goods as originating from a particular undertaking because of the mark, and statements from chambers of commerce and industry or other trade and professional associations.

Annual sales turnover figures and advertising spend on the trademark are given special attention in determining the distinctive character of a trademark. If the period of use is shorter, the sales turnover for the period in question should be considerable, having regard to the nature of goods. High turnover and/or advertising could compensate for a short period of use.

No, the trademark used since date is not the only factor considered for trademark registration. The courts have held that assessing the distinctive character of a mark is more important than the trademark used date. Various factors, such as market share, geographical spread, advertising, and industry recognition, are considered to determine the distinctive character of a trademark.

Yes, a trademark can be registered even if it has not been used yet. In such cases, the applicant can indicate "proposed to be used" as the trademark used since date in the application.

To support the trademark used since date, applicants can submit evidence such as sales invoices, advertising materials, promotional campaigns, industry recognition, and statements from chambers of commerce or trade associations, demonstrating the use and recognition of the trademark.

The article does not specify a minimum period of use required for trademark registration. However, it suggests that if the period of use is shorter, the sales turnover and advertising spend for the period in question should be considerable to compensate for the shorter duration.

The trademark used since date itself does not directly affect the likelihood of registration. The article emphasizes that the distinctive character of the mark is more important than the trademark used date. However, a longer period of use, along with significant sales turnover and advertising, can contribute to establishing the distinctive character of the trademark, increasing the chances of registration.

Yes, a trademark can be registered without any prior use. In such cases, the applicant can indicate "proposed to be used" as the trademark used since date in the application. The distinctive character of the mark will be assessed based on other factors, such as the proposed marketing and promotional efforts.

The trademark used since date is relevant for all types of trademarks, including word marks, logos, slogans, and other distinctive signs, as it is a mandatory requirement in the trademark application process. The article focuses on the significance of the trademark used since date in the context of trademark registration in India.