Analysing The Conflict Between A Prior User And A Registered User In A Trademark

Shohini Roy & Srishti Sherpa, B.A.LL.B (Hons.), St. Xavier’s University, Kolkata

ABSTRACT

In a world which welcomes the growth of trade, intellectual property has become an important subject matter. When one invents or creates something, they feel the need to protect it. This is where intellectual property right comes in and protects the user from having his rights infringed. Trademark is one of the aspects of intellectual property, it is a perpetual right, one that subsists with the original user from the day on which it comes into existence to when it is actively in use, the right however, needs to be renewed after every 10 years. The primary objective of trademark is to distinguish a particular product from another product, thus, reflecting the goodwill and reputation of a particular product. To understand trademark and what all can be included under its wide ambit, it is important that we understand prior use with respect to trademark. In India, the provision that deals with prior use in trademark is section 34 of the Trademark Act, 1999. On the other hand, the provision that deals with the rights conferred by registration on a user is given under section 28 of the Trademark Act, 1999. This article delves into the conflict that still persists in India and offers an understanding of the same, that is, of prior use of trademark versus a registered trademark.