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

Meera runs 'Kaveri Spices', an unregistered brand used for years in Mysuru. A rival in Pune starts selling spices under a deceptively similar name. Meera wants to sue. Which position is correct under the Trade Marks Act, 1999?

Meera cannot sue for infringement of an unregistered mark because the Act bars such proceedings, but the Act expressly preserves her right to bring a passing off action against the rival and claim the remedies available for it.

  1. AShe cannot sue for infringement of the unregistered mark, but her right of action for passing off is not affectedCorrect
  2. BShe can sue for infringement because long use gives the same rights as registration
  3. CShe cannot take any action, since only registered marks get any remedy
  4. DShe can sue for infringement only if she first obtains a registered user

Explanation

Section 27(1) bars infringement proceedings for an unregistered trade mark. Section 27(2) preserves rights of action and remedies for passing off. Meera must therefore frame her suit as passing off, not infringement.

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