Bearing the Burden of Common Use in Trademark Ownership

Bearing the Burden of Common Use in Trademark Ownership. If you're using a particular mark (such as a logo, slogan, or brand name) in your business activities, you are responsible for ensuring that others do not use it without your permission. The party using a mark, which is common to trade, bears the risk of it being used by others. If someone else starts using the same or a similar mark, it can weaken the distinctiveness of the trademark and cause confusion among consumers. Trademarks in India are governed by the Trade Marks Act, 1999, which essentially states that the responsibility for protecting a trademark lies with the party who is actively using it in trade or commerce. 
A well-known example of a trademark that was commonly used by everyone is "Aspirin." Originally a trademark of the German pharmaceutical company Bayer, "Aspirin" was used to market acetylsalicylic acid, a widely used pain reliever and anti-inflammatory medication.
However, after World War I, Bayer was forced to abandon its trademark rights to "Aspirin" in many countries as part of war reparations. As a result, "Aspirin" became a generic term for acetylsalicylic acid in various countries. This meant that other pharmaceutical companies could also produce and sell acetylsalicylic acid under the name "Aspirin" without trademark infringement on Bayer's trademark.
Despite efforts by Bayer to retain exclusive rights to the "Aspirin" trademark, it became widely used by consumers and healthcare professionals to refer to acetylsalicylic acid, regardless of the manufacturer. This loss of trademark protection and its exclusivity for Bayer demonstrates how a once-protected trademark can become genericized through common use, leading to the loss of legal protection and exclusivity for the original trademark owner.
Understanding Trademark Ownership in India
Trademark ownership in India is like claiming a special identity for your business or product. If you're the first to use a specific logo, name, or phrase, it's automatically yours to some extent, even without officially registering it. But registering your trademark makes it official and legally protected. Having a registered trademark means only you can use that symbol or name for your business. If someone tries to use it without your permission, you can take legal action against them. So, trademark ownership in India is about securing your unique identity and protecting it from unauthorized use. You need to seek help from professional trademark attorneys for trademark registration and maintaining the ownership of a trademark in India. 
The Concept of Common Use in Indian Trademark Law
The concept of common use in Indian trademark law refers to the phenomenon where a trademark becomes so widely used by the general public that it loses its distinctiveness as an indicator of a specific brand or source of goods or services. When this occurs, the trademark essentially transforms into a generic term that is commonly understood to represent a category of products or services rather than a specific brand.
One such example of a trademark that has become generic through common use is "Band-Aid." Originally a trademark owned by Johnson & Johnson for its adhesive bandages, "Band-Aid" became widely used by the public to refer to any adhesive bandage, regardless of the manufacturer. As a result, the term "Band-Aid" has become genericized and is no longer exclusively associated with Johnson & Johnson's brand.
In legal terms, when a trademark becomes generic, it may no longer be eligible for protection under trademark law. This means that the original trademark owner may lose their exclusive rights to use the trademark and prevent others from using it for similar goods or services.
To prevent their trademarks from becoming generic through common use, trademark owners often engage in efforts to educate the public on the proper use of their trademarks and take legal action against unauthorized uses that could contribute to the genericization of their trademarks.
Assessing the Burden of Proof in Trademark Disputes
Assessing the burden of proof in trademark disputes is crucial in determining which party is responsible for providing evidence to support their claims. Trademark disputes typically arise when one party alleges that another party's use of a trademark infringes on their rights or causes confusion among consumers. The burden of proof refers to the obligation placed on each party to present sufficient evidence to establish the validity of their claims.
In trademark disputes, the burden of proof typically falls on the party alleging infringement or challenging the validity of a trademark. This means that the party claiming trademark infringement must provide evidence to demonstrate that their trademark rights have been violated, while the accused party may need to provide evidence to refuse such claims. The burden of proof in trademark disputes can be assessed based on various factors, including the type of claim being made, the nature of the evidence available, and the specific legal requirements of the jurisdiction in which the dispute is being adjudicated.
For example, in cases of trademark infringement, the burden of proof may require the trademark owner to establish that their mark is valid, distinctive, and has been used in commerce. They may also need to demonstrate that the accused party's use of a similar mark is likely to cause confusion among consumers.
On the other hand, if the accused party challenges the validity of the trademark, they may bear the burden of proving that the trademark is generic, descriptive, or lacks distinctiveness, and therefore should not be entitled to trademark protection. The burden of proof in trademark disputes may shift depending on the stage of the proceedings and the evidence presented by each party. For instance, if the trademark owner provides prima facie evidence of infringement, the burden may shift to the accused party to rebut this evidence and prove that there is no likelihood of confusion.
Overall, assessing the burden of proof in trademark disputes requires careful consideration of the legal principles, evidence, and arguments presented by each party. 
Evolving Jurisprudence on Common Use in Indian Trademark Law
Trademark law in India plays a crucial role in protecting the distinctive identity of goods and services in the market. Over the years, the jurisprudence surrounding common use of trademarks has evolved to strike a balance between protecting the rights of trademark owners and promoting fair competition in the marketplace. 
Section 9 of the Trademarks Act, 1999 outlines absolute grounds for refusal of trademark registration, including marks that lack distinctive character or consist of common descriptive terms. This provision aims to prevent monopolization of generic or common terms as trademarks, ensuring fair competition in the market.
1.Panacea Biotec Ltd v. Recon Ltd 1996(16) PTC 561(Del):
In this case, the Delhi High Court emphasized that trademarks based on generic or common words may not be accorded exclusive protection. The decision highlighted the importance of differentiating trademarks from generic names to warrant trademark protection.
2. Schering Corporation Vs. United Biotech (P) Ltd. 2011(1) Bom CR 89
The Bombay High Court, in this case, reiterated that trademarks using common or descriptive terms may not enjoy exclusive rights. It underscored the need for trademarks to have added features that distinguish them from generic names to merit protection. 
HOW CAN COMPLIANCE CALENDAR HELP? 
Compliance Calendar provides tailored solutions for all your compliance needs. We are a team of experienced and professional trademark attorneys who not only register your trademark but also protect your trademark during the complete process. You can register your trademark today easily and conveniently with our specialized team and experts.  For any further clarifications and suggestions, kindly connect on 9988424211 or mail at info@ccoffice.in.

Bearing the Burden of Common Use in Trademark Ownership

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