First to file or first to use rule

India follows the rule first-to-use, not the first-to-file, which is similar to Malaysia, Canada, the United States, Denmark, Hong Kong, Ireland, Italy, Brunei, South Africa…. While “first to file” rule provides the priority right to the first person who files a trademark application for protection, regardless of the date of using this brand in public; under “first to use” rule, it is not registration, but the actual use of the first entity to make a valid “use in commerve” of the particular trademark is the one that has priority right.

Use in Commerce

The term “use in commerce” means the bona fide use of a mark in the ordinary course of trade. The use must be more than merely to reserve a right in a mark. Trademark protection is granted only to marks that are used to identify and to distinguish goods or services in commerce, which typically occurs when a mark is used in conjunction with the actual sale of goods or services.

This is necessary because the purpose of a trademark is to help consumers identify the source. A mark cannot serve as a source identifying function if the public has never seen the mark. As such, a mark is not worthy of protection until it is used in public in a manner that creates an association among consumers between the mark and its source.

So, if you want to protect your trademark in India, make sure you are the first to actually use the trademark in commerce.

Please click here to know the fee of trademark registration in India. Also, you can visit here to see the procedures and required documents for trademark registration in India.

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