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Section 34 of Indian Trademark Act

 Section 34 of Indian Trademark Act

Section 34 simply says even if a user has been using a trademark but has not get it registered before anyone else for a period of time

It basically puts a limit to the registered trademark owner not to exploit the product of any of the user or similar product of user who has been using it prior to the registered user even though not registered 

earlier than anybody else

For example, if a particular trademark is being used by a person But that person has not registered it and a person with similar trademarks comes up in the market and gets it registered and it got registered to buy the trademark officer as there was no such registration details

In this case the person who has not got it registered but is the prior user has the upper hand

Some key points -

The utilisation of the trademark should be constant

The trademark should be used in order to gain profit by the owner

The utilisation of the trademark should be prior to the trademark registered
there are few products which are into existence since long and being used but some other person with a similar product gets it registered under trademark. Section 34 of the Indian Trademark Act  says that no arrangement of the Act will let any enlisted brand name proprietor abuse any right of an individual involving any such comparable brand name for a while before the date of first registration of the later brand name or the enrollment of the new trademark.

(Neon Laboratories Ltd. v. Medical Technologies Ltd

In this case the defendant is the prior user of a product, the defendant had filed an application for the registration of the mark six years prior to the establishment by the plaintiff. The defendant had refrain from using the mark and was not using the trademark continuously .

The court on the related to this information said that even if the defendant has a prior user remark but has not been an active user and is dormant for 12 years while the plaintiff is a registered users and along with that a very active user with regular production and marketing of a similar drug, also has constituted a good goodwill in the market.

It was also observed that the factors, ingredients balance of convenience were in favour of plaintiff.

      The court in relation to the section 34 of the trademarks act analyse that prima facie is in favour          of the plaintiff as the defendant is a flop proprietor who is not an active user of its mark even though he’s a prior user.
The prior user of the trademark in order to weeken the assurance conceded to an enlisted mark needs to show a pertinent strong material and prove that they are actually a prior user. The continuous use of the trademark by the enterprise should be exhibited In such a Way that it is not questionable .

The consistent use of utilisation and the date on which the user started to use its trademark should be crystalline clear with evident proof.


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