LOWENBRAU vs. LOWENBRAU- A NON-USE CONTROVERSY

Gajendra Khichi, an intern at Khurana and Khurana talks about case of non-use of trade mark. Through this post, he gives special emphasis on the case of , which created quite a stir regarding non-use of trade mark. The object of the trademark law is to protect the rights of the users of the mark and not to create trademark holders who do not intend to use the mark but register it only for the purpose of preventing others from using the mark. The Trade Marks Act, 1999 prevents such registration and even if the mark is registered without intention to use it, the same can be removed from the register on application. This post analyses the concept of removal of mark for non-use under as provided under Section 47 on the basis of recent decision of IPAB in is a case of non-use of trade mark where an order was passed against respondent by the IPAB

The respondent in this case was the registered owner of the following trademarks:

Sr. No.	Type	Application No.	Class	Filling Date	Registration Date
1.	Label	280783	32	12/06/1972	15/03/1999
2.	Label	196881	32	08/07/1960	15/11/1962
3.	Word	642375	32	18/10/1994	23/03/2005
4.	Label	258875	32	19/08/1969	20/08/1988

The respondents had not used the trade mark. Even though they had obtained registration as early as in 1960’s, they had decided to manufacture and sell beer only in September 2007. On the other hand the applicant is the registered proprietor of the trade mark Lowenbrau Buttenheim in Germany registered on 05/08/1988. A company under the name Lowenbrau Buttenheim India Pvt. Ltd. was incorporated by the applicant in India as early as 14.04.1999. The goods of applicant under trade mark Lowenbrau Buttenheim were available in India since 1999 through its licensee. Applicant argued that the respondents have concealed the fact about the coexistence of M/s. Lowenbrau Buttenheim, Germany. It was also argued that the applicant is serving its goods in Germany, United States and Korea through its establishments under the trade mark Lowenbrau Buttenheim since 1880. So applicant is first user of the mark. The court observed that respondents have although obtained registrations as early as 1962, 1988, 1999 & 2005 respectively but have not used it in trade.  The respondents are only preventing others from using which is not a good practice.

Analysis

Section 47 of the Act provides that when the mark has not been used, it can be removed from the register. The said Section prescribes two conditions as observed in,