Invalid trade mark

Dear Perfect Solution,

       I have asked this question for healthy discussion. Reason for asking this question is this, under Section 124 of the Trade Marks Act 1999, if some body wants to get suit stayed on account of filing of Cancellation Petition of registered trade mark of opposite party during the pendency of suit proceeding, then plea of invalidity of registered trade mark of opposite party is must. In case the plea if ivalidity of registered trade mark is not there, then what could be circumstances on the basis of which. it can be said that the trade mark of the opposite party is invalid.   

       Knowledge is not proprietary of any body. It has got nothing to with experience.I do not know why such a omniscinet person like you has taken so much pain in making such a sarcastic comment, instead of making the suitable reply.

      In any way let me tell you, if a teacher asked a question to student, this does not mean that teacher does not know. In fact the teacher wants that student should enhance their knowledge. This is the reason why I have asked this question for healthy discussion and enhancement of knowledge.

Dear Perfect Solution,

 

   Please donot ruin the purpose of this forum. Do not take it personally. What ever allegation you wish to make, please make. I do not mind. I honour your views. Please contribute towrds the topic. I am sorry if I have offended you. I still request you, if you have any idea regarding this topic , please share you views.

  it points out both , either plaintiff or defendant. 

Section 124 of Trade Marks takes care of both the situation. The cancellation petition is filed by the defendant against the registered trade mark of the plaintiff or in other situation where cancellation petition is filed by the plaintiff against the registered trademark of the defendant.

The main bone of contention is how a trade mark can be said to be invalid. As the trade mark being invalid, is not defined in the Trade Marks Act 1999. Though ground of non-use, or lacking distinctiveness of faulty advertisements are grounds for cancellation. But it is not clear how a trademark can be said to be invalid. Kindly put some light on it.

Ground of cancellation is not relevant for the purpose of taking advantage of Section 124 of Trade Marks Act 1999. Only factum of filing of cancellation petition, during the pendency of Suit proceeding is sufficient. The thing is that the pleading of invalidity is not there.

On the ground of non-use of trademark, obtaining registration falsely, selling goods or providing services under false trademark or trade descripttion etc.. you can initiate invalidation proceeding or revocation proceeding against registered trademark before the IPAB.

It means non use of a trademark can be a ground for asailing the validity of a trade mark.

Ajay Sir, with reference to your query how a trade mark can be said to be invalid, I would like to say that Section 31(2) clearly lays down the parameter where a registered trademark can be held to be invalid. If evidence of distinctiveness was not set out before the Registrar of Trade Marks on the day of registration, validity can be questioned.

Priyanka ji, 

  Section 31 (2) of the Trade Marks Act 1999 says as under:

In all legal proceedings as aforesaid a registered trade mark shall not be held to be invalid on the ground that it was not a registrable trade mark under section 9 except upon evidence of distinctiveness and that such evidence was not submitted to the Registrar before registration, if it is proved that the trade mark had been so used by the registered proprietor or his predecessor in title as to have become distinctive at the date of registration.

  It takes care of only such situation. What may be other circumstances, where a registered Trade Mark can be said to be invalid.