Trademark registration is specifically for claiming a right over a particular word /logo/ a combination or both before anyone else and benefiting from the exclusive rights therefrom. An individual/a company who applies first for trademark registration in India gets priority over that name. So, the importance of user date is essential in trademark registration for registered as well as unregistered trademarks.
What is user date in trademark registration?
Basically, User date is nothing but the date since the said brand name has been in use for commercial purposes. A claimed user date can prove to be a boon in many trademark cases.
Let us understand how “user date” works:
When two trademark applications are applied for and compared, the one that claims a prior date / date of first use of trademark has a better chance of getting the exclusive right to use the mark. Hence, if you have been using the name before going in for registration you must claim the use of the said brand from that date. And if the brand name is still not in use, it has to be applied for under the category of proposed to be used.
Mere stating any particular date is not enough. One must be able to provide a valid proof for the same. Claiming prior use without proof is not permitted.
What proofs can support the prior use claim?
The documents that can provide evidence for the claimed use can be:
• Invoices and bills of each year from when the mark is in use
• Advertisements such as flyers, brochures, leaflets that have been publicly distributed
• Website pages that promote the services
• Radio advertisements
• Television commercials
• Government Registration Certificates
These documents should contain the brand name and the date and proof that the brand name was used for a commercial purpose.
Now let us discuss what are the advantages of claiming user date?
Makes the mark distinctive
Continuous use of a brand name or logo helps in creating a secondary meaning. This helps the brand get a distinct recognition in the market. For example, usually registration of common names and surnames is not permitted, but if it is easily recognized by the public and they differentiate it from other products in the market due to the distinct name or logo, the registration would be permitted. A mark which otherwise may be denied might get registered because of a claim of prior continuous use.
Dealing with objections and proceedings
The applicant who claims prior use usually has the upper hand in claiming right over the trade name. If an objection or a third-party opposition is raised, prior use can help the applicant regain his right. However, it is important that a valid user date is mentioned in the application, it cannot be claimed at a later stage.
Provides an exclusive right to use the trademark
The Trade Marks Act restricts the registered TM owner from interfering with the rights to use of a prior user. The prior user gets priority in registration. Moreover he/she can prevent any third person from trademark registration or infringing the mark that is similar to such a prior company or individual.
Prior usage and passing off
Passing off is a common law tort that is used to enforce unregistered trademark rights. If the unregistered trademark owner has been using the brand name before the registered owner, his right to use cannot be taken away.
Trademark registration has its perks. To prevent trademark infringement and keep your trademark well secured it is always better to state a valid user date in the trademark registration application. The prior use claim adds the value of goodwill built over the years and makes the applicants right over the trademark stronger. Hence a valid claim with an affidavit testifying to such use along with supporting documents should be along with the application. Such a claim can turn tables in a trademark case.