good. Section 2(zb) of the
Trade Marks Act defines a 'trade mark' as a mark capable of being
represented graphically and capable ... unregistered mark. The owner
of the unregistered mark enjoys the common law rights that the owner of the
mark was enjoying under the Trade
protection available
even in respect of the descriptive trade mark was wrong. A descriptive
trade mark may be entitled to protection if it has assumed ... distinctiveness. For the
owner of an unregistered word mark to claim exclusivity over the mark in the
trade, the word must almost be incapable
section (1) the prohibition is against registering a trade mark which competes with another registered trade mark. Sub-section (2) of Section ... cases of competition between a registered trade mark and an unregistered trade mark but on the plain language of it must also include cases
below :
"27. No action for infringement of unregistered trade
mark.--(1) No person shall be entitled to institute any proceeding to
prevent ... recover damages for, the infringement of an unregistered
trade mark.
(2) Nothing in this Act shall be deemed to affect rights of action
against
Under Section 28 of the Trade and
Merchandise Marks Act on the registration of a trade
mark in Part A or B of the register ... exclusive right to use the trade
mark in relation to the goods in respect of which the
trade mark is registered and to obtain relief
administrative framework to facilitate search for conflicting marks and
examination by the Trade Marks Registry. In the Australian Wine Importers TM
case ... that in an action for passing off on the basis of unregistered trade
mark, generally in deciding the question of deceptive similarity, seven factors
wanted to market a cigarette named Merit. The mark 'Merit' was an unregistrable trade mark since it indicated the quality of the product ... company did not market Nerit at all but promoted its unregistered trade mark Merit.
51. As the defendants Phillip Morris, came out with Merit Cigarette
earlier trade mark and similarly of goods or
services covered by the trade mark; or
(b) its similarity to an earlier trade mark ... with the earlier trade mark.
(2) A trade mark which-
(a) is identical with or similar to an earlier trade mark
that in an action for passing off on the basis of
unregistered trade mark, generally in deciding the question of deceptive
similarity, seven factors ... registered proprietor of the mark could bring an action to restrain an
unregistered mark from using the mark. Furthermore, if there was
visual and phonetical
your petitioner's use of the said mark and/or trade mark and/or trade name Amolid and/or from in any way carrying ... trade mark which is identical with or deceptively similar to the plaintiff's trade mark, whether registered or unregistered;
shall be instituted
