02 December 2013

Trademarks – Use not proved by registration alone

Intellectual Property Appellate Board (India) has allowed rectification application of a confectionary major in respect of various trademarks of another major, concerning word ‘Eclairs’. In respect of three applications, the Board, noting that the respondents had filed only registration certificates obtained in various countries, held that just registration alone will not help the respondents to prove their use when there is not a single evidence to show or prove user. It noted precedent decisions wherein it was held that if the respondent does not rebut the ground of non-user, it is proved that they have not used the mark even after several years of registration and the mark shall be cancelled for non-user.

In respect of another rectification application, ground of non-user, for a period of 5 years and 3 months, was not accepted as the mark was registered in the year 2002 and the application for rectification was filed in the year 2005. [ITC Limited v. Cadbury Schweppes Overseas Ltd. - IPAB Common Order No. 239/2013, dated 31-10-2013].


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