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CS Professional · Intellectual Property Rights - Law and Practice · Trademarks

Himalaya Tea Traders Pvt Ltd is the registered proprietor of the mark 'CHAIKHAS' for packaged tea. A rival, Nilgiri Brews, sells packaged tea under an identical mark and also holds a registration for it. Himalaya claims that its registration alone gives it the exclusive right to use the mark against Nilgiri. Under the Trade Marks Act, 1999, what is the position?

Mere registration does not give either proprietor exclusive use against the other registered proprietor of an identical or nearly resembling mark. Each keeps the same rights against third parties as a sole registered proprietor would have, as provided in section 28(3) of the Trade Marks Act, 1999.

  1. AHimalaya acquires exclusive use against Nilgiri merely by registering, since it registered first
  2. BRegistration alone does not give either registered proprietor exclusive use against the other, though each has the same rights against other persons as a sole registered proprietorCorrect
  3. CBoth registrations are void because identical marks cannot coexist on the register
  4. DOnly the proprietor who is a registered user of the other can sue for infringement

Explanation

Section 28(3) says that where two or more persons are registered proprietors of identical or nearly resembling marks, exclusive right is not deemed acquired by one against another merely by registration. Each otherwise has the same rights against other persons as a sole proprietor. The option claiming Himalaya gains exclusivity by priority of registration ignores this.

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