Yes you can unless there is proper policing done, you are highly likely to lose your trademark rights. In my previous article I had mentioned how getting your mark registered is just the first step to the long battle ahead because even if your trademark is approved, people can challenge and steal your trademark and can do so by legal means. It sure does sound oxymoronic; how can one “legally” steal something, but if you read on you’ll know exactly what I mean. So to put this in perspective, here are some of the ways in which someone else could actually do that;
When you fail to properly assign/license your rights:
In one of my previous articles dealing with assignment of trademarks in India, I had comprehensively laid down the procedure relating to the law of assignment in India. But what happens when you assign your trademark improperly? Most of the times, you tend to lose your rights over the trademark. That’s because if you license or authorize third parties to use the mark and fail to adequately control the quality of the good or services offered under the trademark, which basically means that you have blindly assigned the trademark, then it will naturally result in you losing your rights.
For example: let’s assume you own a clothing line “Ruby” where you manufacture and sell clothes and you expand your business by licensing it to a third party in turn imports clothes at cheaper rates and slaps your brand name” Ruby” on it. The point here is that third-party use of a trademark should be monitored for proper usage as well and for quality control because if you don’t do so then there is a possibility that over a period of time such blanket assignments may result in erosion of the distinctiveness of your trademark which may ultimately result in abandonment of your mark. So basically, there is a risk if you assign your trademark separate and apart from the goodwill represented by the mark.
In addition, proper exercise and control over the usage of the mark in case of licensing is also equally important otherwise there is a strong possibility that the consumers might be misled and the trademark will cease to perform its most important function which is to act as an indication of source or origin of the product.
As a precaution, it is recommended that you include Brand usage guidelines or something on those lines annexed to your agreement clearly demarcating the licensee’s rights and limits.
When you have abandoned/acquiesced your rights:
In simple words, if you fail to use your trademark for a specific period of time then you have deemed to abandon your mark. Section 47 of the Trademarks Act, 1999 lays down grounds for removal of a trademark from the registry. As per section 47(1) (b), if you fail to use your mark for a period of five years post registration then it results in you abandoning the mark which is also a ground for removal of your trademark from the Trademark register.
Also, if you fail to effectively police your trademark then it will result in you having acquiesced your rights. I’ve dealt with the concept of acquiescence comprehensive in one of my earlier posts.
When your mark has become generic in its field:
“Google” it, take a “XEROX” are examples of how a trademark becomes generic in its field. Genericide is when the public considers the trademark to represent a general category of products or services rather other associating it only with the owner. Asprin for acetylsalicylic acid pain reliever, cellophane for transparent cellulose sheets, pilates as a form of exercise have all held to be generic by the US Supreme Court.
Learn from others mistakes and craft effective strategies to educate the public about your brand and try your best to not use and let others use your trademark as a verb, or in plurality and try to incorporate appropriate trademark symbols, ® if registered, SM for unregistered service mark and TM for unregistered trademarks.
So as a trademark owner or potential trademark owner, you really need to proactive in protecting your mark. One has to take proper legal actions against improper use of your mark and to protect your trademark from being stolen! Time to wake up after all.