Registration affords better protection. Non-registration does not disentitle the proprietor of a trademark from initiating a legal action [which suits are popularly known as ‘passing off’ suits] against an unscrupulous trader / user. Delay does not defeat justice provided there are valid reasons explaining the delay. The proprietor of a trademark, whether the mark is registered or unregistered, should be vigilant and he must constantly check in the market if any other person uses a mark which is similar or deceptively similar so that an appropriate legal action against the unscrupulous trader / user could be initiated.
Before applying a trademark, it is better to do a pre-adoption / pre-application search. Search does not mean a mere ‘google’ search or any other similar search. Such searches may add value. However the search that is must is an official search of the records at the trademarks registry under the Trademarks Act, 1999 so as to be sure that the mark proposed to be used in trade is not identical or similar or deceptively similar to any other mark already registered / in queue for registration. Trademark search is a country specific national search. Thus such searches must be carried out in such countries as may be necessary. Such searches help to verify the existence of similar or resembling marks. Official search will not offer any help to find out well known unregistered marks if proprietors of such marks have not even applied for registration.
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