How Do People End Up Losing Their Trademark Rights?
What happens after you get your mark registered as a trademark? Your Trademark Application gets approved, and you receive your registration certificate. Don’t let that Trademark Registration certificate fool you. It will surely declare your exclusive Trademark Rights to a logo or name; however, it is essential to note that you can lose those rights just as easily as you acquired them.
A trademark registration certificate that you receive after getting your proposed trademark approved from a country’s Trademark Office is just the first step in the journey of your trademark ownership. The inconvenient truth in this scenario is that owning a trademark is not like owning a home; instead, it is more like renting. Therefore, even after a trademark office grants you your exclusive trademark rights, you must do your part to safeguard such rights well.
No trademark office across the globe will ever keep a watch on the market for unauthorized use of your Registered Trademark. Furthermore, it will also never enforce your trademark rights on your behalf. It implies that the onus lies with the trademark holder to prevent others from infringing upon his trademark rights.
Without any doubt, trademark owners who actively monitor and safeguard their registered trademarks, search out and prosecute lawsuits of Trademark Infringement – continue to extract colossal benefits from their respective trademark registrations. Therefore, we can say that failing to safeguard your registered trademark adequately would lead you at risk of forfeiting your exclusive rights. You may see your trademark rights getting diluted and possibly canceled through litigation.
To put it straightforwardly, most people end up losing their trademark rights in two ways – through their non-intentional acts or the non-use of their registered trademarks. Let us understand these two aspects in detail.
Non-Intentional Acts of the Trademark Owner
Many non-intentional acts can lead to a loss of the exclusive trademark rights, all of which relate to the trademark owner’s failure to safeguard his mark.
- First and foremost, trademark owners must keep a watch on the offline and online markets at all times for any product or service using an identical or similar mark. Identical or similar trademarks are present across different classes of products and services. For instance, ‘Dove’ is a registered trademark for both a candy bar and a soap produced by entirely different manufacturing companies; however, trademark owners still need to observe such uses. It is the likelihood of confusion that leads to trademark infringement instances. To be specific, there might be a case of trademark infringement if consumers are likely to confuse one mark for the other. It is, therefore, the responsibility of the trademark owner to maintain the integrity of his trademark and prevent others from infringing upon it.
- Unfavorable or unpleasant publication of an identical or similar mark can tarnish the reputation of a trademark owner’s registered trademark. Therefore, trademark owners should look out for this type of usage and prevent it from spreading further. It is essential to note that frequent and varied use of a third-party mark in a negative context directly harms the reputation of a registered trademark. Hence, trademark owners should always monitor their marks for preventative purposes.
- Failing to watch out for such trademark misuse and violation can dilute the registered trademark’s essence and meaning. A mark gets registered as a trademark to create and preserve its distinctiveness. Therefore, any action that dilutes the essence and meaning of a registered trademark can lead to its cancellation.
- On the other side, thorough Trademark Protection and effective market permeation can result in ‘genericide,’ which refers to any mark gaining so much prevalence that it becomes a generic reference for all products in the same vein. Let us understand the term better with a few examples. Escalator, Trampoline, and Aspirin – Do you know what all these brands have in common? They were once officially and legally owned trademarks; however, now they are just everyday words. They have become so widely recognized that they have taken on lives of their own. Once a trademark reaches the generic status, the loss of distinctiveness implies a loss in trademark protection, leading to third parties seeking the cancellation of such a mark through this argument.
- Uncontrolled licensing of a registered trademark can also result in the loss of the exclusive trademark rights. To understand this better, let us talk about controlled licensing. Sports leagues are the best examples of controlled licensing. What they do is screen licensees and keep a regular watch on the market against unauthorized use of their trademarks. They rarely let go of any trademark infringement case without fighting for it.
Non-Use of a Registered Trademark
Keeping a regular watch on the market for unauthorized use and reproduction of similar or identical marks goes a long way towards safeguarding trademark rights. However, one’s own house deserves equal consideration in this case. The Trademark Law of different nations is not based on registration alone, but on the usage of marks and timely renewal as well.
- In the first place, let’s talk about the most obvious culprit – not noticing when the registered trademarks are up for renewal. In most nations globally, a trademark registration certificate is valid for an initial term of ten years, which can be renewed for successive periods of ten years each indefinitely. It is the responsibility of the trademark owner to file for the renewal of his trademark after every period of ten years. Unfortunately, many companies and trademark owners neglect to monitor their registered trademarks for renewal and overlook the deadlines, which is the most common cause of them losing their trademark rights.
- The trademark laws are designed to be practical, i.e., if you don’t use your trademark well, you will end up losing it. Keeping in mind this aspect, trademark owners must prove the continued use of their registered trademarks from time to time. Between the 5th and 6th year after trademark registration, trademark owners must make a point to submit their proof of continued use. Non-use of a registered trademark for three or five consecutive years (as mentioned in a country’s trademark law) is considered abandonment unless somehow proven otherwise.
- Maintaining a valid record of use is exceedingly crucial since failing to do so may open up a registered trademark to cancellation by litigation. Providentially, attempts to prove non-use of a registered trademark require compelling and conclusive evidence as the entire matter involves complete forfeiture of the respective trademark rights. However, if a trademark owner doesn’t pay adequate attention to maintaining and recording usage, non-use cancellation remains a possibility.
Kindly note that in any of the circumstances discussed in this article, simple steps and measures can be adopted to ensure the trademark rights are well-protected and maintained. Regular watch on the market for unauthorized usage and licensing can prevent dilution and protect the brand image and reputation. Maintaining relevant and precise records of usage can prevent non-use cancellation actions from third parties. Also, consulting a Trademark Attorney can help trademark owners avoid facing the potential of losing their trademarks. ✅ For more visit: https://www.kashishipr.com/