Protection of Unregistered Mark

A Trademark means a mark/ sign or symbol which distinguishes the goods or services of one person/organization from those of others. Trademark ensures that your unique brand name and the attached brand value are well protected. 

In this competitive era, we all know that getting the Trademark registered under the Trade Marks Act, 1999 is an asset that facilitates brand recognition and protection for your market value and at the same time provides a separate space for your business in the market. But, getting the trademark registered is a voluntary exercise that totally depends upon the discretion of the concerned person.


Unlike the Registered trademarks the unregistered trademarks do not get the statutory protection against the infringement of such trademark but the common law as well as the section 135 of the Trade Mark Act,1999 recognizes the unregistered trademark and provides relief for passing off. If a certain mark is used by anyone since a longer period of the time and if the same brand name/ mark has gained a sufficient amount of Goodwill and creditworthiness in the market, then such a mark is eligible to be recognized as a trademark without being officially registered as a trademark under the Trade Marks Act, 1999.

It is to be noted that, in order to seek relief in suits for passing off, the following conditions are required to be fulfilled:

  • The particular brand name/ trademark should be distinctive and the claimant/ owner is the prior user of such particular trademark.
  • A sufficient amount of goodwill/ recognition exists in respect of the particular trademark in the market.
  • There is a false representation of the disputed goods or services that creates confusion in the minds of the consumers and an association is conveyed with the goods and services of the owner 
  • The owner of the trademark is likely to suffer injuries or damages due to such misrepresentation.

Henceforth, in order to seek protection for an unregistered trademark, the afore-listed essentials shall be considered by the respective authorities. It is required to be clear that the use of a similar trademark by the defendant is detrimental to the owner of the trademark and at the same time is misleading for the public and the consumers.

Section 135 of the Trade Marks Act, 1999 provides that the court may grant relief in any suit of the infringement or for passing off in the form of the:

  • The injunction provided that, such an injunction can be provided subject to the terms and conditions if any as the court deems fit. The order of injunction may include either an ex parte injunction or any interlocutory order.
  • Either damages or an account of profits, together with or without any order of the delivery up of the infringement labels and marks for destruction or erasure, at the option of the plaintiff subject to the prescribed conditions.

Related Case Law: Seven Towns vs. Kiddiland 

Under this case law, a suit was filed by the Seven Towns which owns IP associated with the Rubik’s Cube alleging infringement of their IP by the Kiddiland in regards to passing-off of the trade dress.  The Delhi High Court granted an injunction in favor of the plaintiff in respect of the unregistered trade dress for Rubik’s Cube, which was claimed to be in use for over forty years with a huge amount of products being sold. Taking into account the whole matter, the injunction was granted by the court against the use of similar shapes and the packaging for the defendant’s product.

Henceforth, Unregistered Marks can be granted protection under the common law, also the owner of such unregistered marks can seek protection under the law of passing off by proving the reputation and goodwill on account of such unregistered trademark.

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