A Study of Indian and US Trademark Law Relating to the Effect of ‘Non-Use’ of a Trademark

236-243This paper surveys the operation of user requirements and the effect of non-use of trademarks in USA and India and examines what constitutes ‘use’ of a trademark and then also examines non-use and its effects. Even though proof of use is not required in many countries for either registration or renewal it is critical for maintaining trademark rights. Generally, the right to exclusive use of a mark grows out of its use in connection with an established business or trade. The user who first appropriates the mark obtains an enforceable right to exclude others from using it, as long as the initial appropriation and use are accompanied by an intention to continue exploiting the mark commercially. Accordingly, failure to use the mark can result in a loss of that right and trademarks may be attacked on the ground of abandonment or non-use. Almost all countries in the world permit a third party to petition the Trademark Office to cancel a registration for non-use. The author briefly examines the position laid own in the Paris Convention and TRIPS Agreement with regard to the issue of non-use. However, it has to be noted that whereas the legal position regarding the issue is pretty much settled in USA, India is still at the nascent stages of development of relevant law