ABC Ltd., incorporated in 1996 deals in Plywood under the Trade Names 'UNIPLY'. It came to know in 1999 that XYZ Ltd. is also using the Name 'UNIPLY'. ABC Ltd. filed a suit against the XYZ Ltd. along with an application

Section 31 of the Trade Marks Act, 1999 stipulates that in all legal proceedings relating to trade mark registered under the Act, the original registration and all subsequent assignments and transmission thereof shall be prima facie evidence of its validity. However, as per Section 34 the proprietor or a registered user of a registered trademark is not entitled to interfere with or restrain the use by any person of a trademark identical with or nearly resembling it in relation to goods or services in relation to which that person or a predecessor in title of his has continuously used that trade mark from a prior date. Therefore, in case of unregistered marks, the owner of the trade mark may lodge a case against passing off action in case his trademark is used by some other person. It has been held by the courts in various cases and the ownership of a trademark is decided by its usage in commercial transactions. The Supreme Court in Uniply Industries Ltd. vs. Unicorn Plywood Pvt. Ltd. and Others observed that: for inherently distinctive marks ownership is governed by priority of use for such marks. The first user of sale of goods/services is the owner who is senior to others. These marks are given legal protection against infringement immediately upon adoption and use in trade. Some courts indicate that even prior sales of goods though small in size with the mark are sufficient to establish priority, the test being to determine continuous prior user and the volume of sale or the degree of familiarity of the public with the mark. Therefore, the proprietorship of the trademark is decided by the date of usage of the mark by a person in business transactions. So, XYZ Ltd. cannot be restrained from using the name 'UNIPLY' as it is using this name since 1993.