INDIA Law and Practice Contributed by: Safir Anand and Twinky Rampal, Anand and Anand Advocates
the mark has acquired a distinctive character by virtue of its prior use. The use of a trade mark must be established by adequate evidence. Relative Grounds for Refusal Relative grounds for refusal of registration (according to Section 11 of the Trade Marks Act 1999) include: • deceptive similarity of the mark in question with the opponent’s registered mark; • similarity of the mark in question with a mark which has prior use; and • adoption of the mark in bad faith. Objections raised under Section 11 can be over - come by the applicant by: • removing the conflicting goods or services by way of amendment; • obtaining consent from the proprietor of the cited mark(s) under Section 11(4); • filing evidence to establish honest concurrent use to secure registration under Section 12; • securing rectification of the register excluding such goods or services of the same descrip - tion from the specification of the cited mark under Section 57; or • dividing the application and allowing the objections-free part of the application to pro - ceed further. 2.3 Trade Mark Rights Section 28 of the Trade Marks Act 1999 states as follows: “28. Rights conferred by registration 1. Subject to the other provisions of this Act, the registration of a trade mark shall, if valid, give to the registered proprietor of the trade mark the exclusive right to the use of the
trade mark in relation to the goods or ser - vices in respect of which the trade mark is registered and to obtain relief in respect of infringement of the trade mark in the man - ner provided by this Act. 2. The exclusive right to the use of a trade mark given under sub-section (1) shall be subject to any conditions and limitations to which the registration is subject. 3. Where two or more persons are registered proprietors of trade marks, which are identi - cal with or nearly resemble each other, the exclusive right to the use of any of those trade marks shall not (except so far as their respective rights are subject to any condi - tions or limitations entered on the register) be deemed to have been acquired by any one of those persons as against any other of those persons merely by registration of the trade marks but each of those persons has otherwise the same rights as against other persons (not being registered users using by way of permitted use) as he would have if he were the sole registered proprietor.” Section 65A and Section 65B of the Copyright Act 1957 allow for the same, and the sections are replicated below. “65A. Protection of technological measures 1. Any person who circumvents an effective technological measure applied for the pur - pose of protecting any of the rights con - ferred by this Act, with the intention of infringing such rights, shall be punishable with imprisonment which may extend to two years and shall also be liable to a fine. 2. Nothing in sub-section (1) shall prevent any person from – (a) doing anything referred to therein for a purpose not expressly prohibited by this
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