An earlier registered trademark mark cannot be used in India, even if the proprietor of the earlier registered mark is not using it. The existence of an earlier registered mark is sufficient grounds for rejecting the application for registration.
To determine whether an application for registration should be rejected based on the existence of an earlier registered trademark, the following test is usually applied:
Resemblance: If there is resemblance between the registered mark and the applicant’s mark.
Deception: If there is a likelihood of deception.
Priority: If the registered mark is the first one in the relevant field.
If all of the above conditions are satisfied, the use of the mark becomes irrelevant, and even if the applicant has established a longer period of use or the registered owner has not used the mark at all, the applicant’s mark is not eligible for registration.
Therefore, it is important for applicants to conduct a thorough search of existing registered trademarks before applying for registration to avoid the risk of rejection based on the existence of an earlier registered trademark.