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Written by : Santiago Pillion
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hi again today we discuss uh something that comes up regularly in our practice and some of uh people may not be aware of it and some people have very wrong understanding of the subject and common misconceptions that this is with regard to trademark now all of us who are in business usually operate under a trademark of our own be it xyz or in our comp with the design or otherwise now many of us many of what we have seen in our profession that many of my clients usually do not uh and specifically it's true for small and medium enterprises that they have never registered their trademark they have not registered now somebody else starts using the goodwill that has been generated by one of my clients then what is his recourse i was astounded a few days back when i talked to some of the people and they all aware of the opinion that well he has not registered so he has no recourse in law but that is not so absolutely not so the recourse was there prior to the advent of the trademarks act or in india this is a recourse which has been there for hundreds of years and that's under the common law the common law and the law of passing off passing off somebody's goods as if it's your own so if you have a trademark under which you operate and you have not registered it and suddenly you find that somebody else is using it somewhere don't be crestfallen don't think that you have no recourse you have a proper valid recourse under the indian legal system and you can immediately apply and file a suit and apply for an injunction against that person from using it and you can also claim damages is under the law of thought it's a law of passing off so please be aware of this and whenever you see there isn't any kind of somebody who is trying to use your product your trademark to pass off his products as yours immediately consult a legal professional and immediately take adequate action to safeguard your own interests and you and your the benefits and goodwill of your own trademark thank you have a nice day and hope this helps
Thanks for your comment Ignacio Shanaa, have a nice day.
- Santiago Pillion, Staff Member
so here's another question from Cora will the trademark examiner check unregistered trademarks am on dream income the founder of trademark factory and here's my answer to this question so when you file your trademark application the trademark examiner will look at it several months after you file it and what they're gonna look at is all trademark applications and registrations that have entered the trademark offices system so they're gonna look at trademarks that have just been filed the formalized trademarks approved trademarks trademarks that have received an office action they look the trainers have been allowed they've been opposed they're look gonna look at trademarks that have been registered so they're gonna look at all trademarks that are part of the trademark offices system regardless of where in the process those applications are but they're not gonna look at trademarks that have never been filed for as part of the trademarks offices system so sure question was are they only looking at trademarks that are already registered then the answer is no they're also gonna look at trademarks that have been filed so for example somebody files for the same trademark as you're trying to file and they've filed you know the same trademark a few days before you did the trademark examiner he is going to look for that trademark they're gonna find that trademark and they're gonna slide that previously filed trademark application as in an office action that you're gonna receive for your trademark application but if your question is are they gonna look outside of the trademarks office system then the answer is no they're not they don't care about brands that brand owners never bothered even try registering so here's your answer to this question I hope you found it useful if you haven't subscribed yet make sure you do and if you've got more questions about trademarks make sure you comment below post your question there and I'll answer them in a video just like this one until then I'll see you in the next video
Thanks Bifferinik your participation is very much appreciated
- Santiago Pillion
About the author
I've studied geometric topology at Seminole State College of Florida in Sanford and I am an expert in risk management and insurance. I usually feel enthralled. My previous job was computer controlled machine tool operators I held this position for 21 years, I love talking about zoo visiting and hula hooping. Huge fan of Alexander the Great I practice netball and collect toys.
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