Trademark Used Since Date
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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