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ajay amitabh suman (ADVOCATE)     10 May 2017

Disclaimer condition on trademark

       Some Courts says that disclaimer condition on a trademark does not go to the market. While some Court return the finding that disclaimer condition on a trademark seriously prejudice the exclusive right of the registered proprietor in a trade mark. If any one can put lights as to what is the significance of disclaimer condition attached to a trademark????


 1 Replies

BHAVYA SOM GARG   28 August 2021

Greetings of the day.

As per the question raised by you that the issue of disclaimer on a trademark is a technical issue which merits a discussion.

Disclaimer in a trademark refers to the statement by which a trademark holder lays down that he has no exclusive control over the generic names involved in the trademark and that they can be used by any other entity as well. The situation to publish a disclaimer arises when the registered trademark contains a part which refers to a very common name and is not an innovation on the part of the trademark holder, and as per the judgements of various courts, a generic name cannot be registered in itself, but it can be used to create a unique name. If the generic name is inseparable from the trademark, the disclaimer won’t be needed as it would be a unique name in itself, but if the generic name is separate and distinct, a disclaimer has to be given to dispel any suppositions as to the exclusive use of the generic name by the trademark holder.

The Hon’ble Supreme Court of India, too, has laid emphasis on the significance of disclaimers in the case of Registrar of Trade Marks v. Ashok Chandra Rakhit Ltd  [AIR 1955 SC 558],  as can be understood from the para below:

“The real purpose of requiring a disclaimer is to define the rights of the proprietor under the registration so as to minimise, even if it cannot wholly eliminate, the possibility of extravagant and unauthorised claims being made on the score of registration of the trade mark. The disclaimer is only for the purposes of the Act. It does not affect the rights of the proprietor except such as arise out of registration.”

Putting up a disclaimer does not mean that the trademark holder is at a disadvantage. The use of the mark is in no way hampered by publishing a disclaimer and he would have all the rights related to the trademark.

Hope it clears the query.

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