Section 34 of the Trademark Act, 1999 protects the rights of a prior user or a predecessor-in-title of the trademark which is identical with or nearly resembling it in relation to goods or services of a registered trademark, to use and register of such trademark even after another trademark has been registered.
In the case of Neon Laboratories Ltd v. Medical Technologies Ltd CIVIL APPEAL NO. 1018 OF 2006 Supreme Court observed the factors to be considered in determining the prior user are
- Date from which the user started using the trademark
- Date of registration of the 1st trademark
- Whether the prior user is an active user of such a trademark?
- Constant use of a trademark by the prior user.
It is also called the ‘first in the market’ test and is used by the first user to prove to the Court that they had already been using their trademark well before the attempted use of an identical or closely similar trademark by the registered user.
