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Establishing Trademark Rights

Trademark rights are established by either

(1) actually using the mark, or

(2) filing a proper application to register a mark in the Trademark Registry of India.

Registering with the Trademark registry is not necessary for establishing trademark rights. However, registration of your mark can help secure benefits such as

-- giving everyone notice of your claim to the mark

-- having evidence of ownership of the mark

-- invoke Indian court jurisdiction

-- use the registration as a basis for obtaining registration in foreign countries

-- prevent the importation of infringing foreign goods.

There are two types of rights in a mark: the right to register and the right to use. Generally, the first party who either uses a mark in commerce or files an application with the Trademark Registry has the ultimate right to register.

The right of use can be more difficult to determine, especially when two parties begin use of a mark without knowledge of the other party and without registering the mark. In a case like this, only a court can decide who has the right of use.

It should be noted that trademark registration provides a significant advantage in a court proceeding if you find that someone is using your trademark.

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