Section 35 of Trademark Act, 1999, addresses conflicts between trademark rights and basic freedoms, like using one’s own name or describing products honestly in business. This section is crucial because it often comes up in disputes over surnames, business locations or product descriptions. It shows that trademark rights have limits and must allow honest practices. This article explains Section 35 in simple terms, covering its text, essential elements, judicial interpretations and case laws along with some implications.
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Saving for Use of Name, Address or Description of Goods And Services: Section 35 of Trademark Act
Section 35 of Trademark Act, 1999 is titled as “Saving for use of name, address, or description of goods or services.” It says: “Nothing in this Act allows the owner or user of a registered trademark to stop someone from honestly using their own name, their business location, the name or location of their business predecessors, or an honest description of the quality or nature of their goods or services.”
In simple terms, Section 35 protects people from trademark infringement claims when they use their personal or business names or describe their products truthfully. It comes from common law ideas and global standards which ensures that common names or descriptive terms are not controlled by one party. The section has multiple goals:
It promotes fair business practices, supports the constitutional right to trade under Article 19(1)(g) of the Indian Constitution, and prevents trademark owners from abusing their rights.
For example, it stops a company from blocking others from using common surnames like “Patil” or “Jindal” if used genuinely. Without this section, trademark law could unfairly limit legitimate businesses and restrict market access.
Essential Elements of Section 35 of Trademark Act
In order to fully grasp Section 35 of Trademark Act, it is essential to break down its core components. These elements define the scope of protection and the conditions under which the defense applies:
Bona Fide Use Requirement
“Bona fide” means honest use without intent to deceive customers or benefit from someone else’s trademark reputation. Courts check if the use is genuine by looking at factors like how long the name was used, whether it causes confusion and if there’s bad intent. For example, using a name to trick customers into thinking it’s another brand doesn’t qualify as bona fide.
Use of One’s Own Name
Section 35 of Trademark Act allows people to use their own names in business, especially surnames shared by many. This applies only to individuals, not companies, which can pick unique names. It recognizes that names are part of personal identity and shouldn’t be controlled by trademarks.
Use of Place of Business or Predecessors’ Names
This part protects using the name of a business’s location or names inherited from previous owners. For example, a business called “Delhi Traders” can use that name if it’s genuine and not meant to confuse customers.
Bona Fide Description of Goods or Services
Section 35 allows honest descriptions of products, like “pure cotton” or “handmade” in order to ensure trademarks don’t block truthful marketing. This promotes clear and fair communication in business.
These elements work together to balance trademark protection with the freedom to operate honestly.
Read to learn more about the Registrar of Trademarks.
Judicial Interpretations and Case Laws
Judiciary has interpreted Section 35 of Trademark Law in India through various landmark judgments by clarifying its application in disputes. These cases show that Section 35 of Trademark Act is applied carefully:
Supreme Court Rulings
In Precious Jewels vs Varun Gems (2014), the Supreme Court supported the Section 35 defense. Both parties used the surname “Rakyan” for jewelry businesses. The plaintiff wanted to stop the defendant from using “Rakyan’s Fine Jewellery,” but the Court ruled the defendant used the name honestly without confusing customers. This showed trademark rights can’t block genuine use of personal names.
High Court Decisions on Surnames
In Somashekar P. Patil v. D.V.G. Patil (2018), the Karnataka High Court allowed the defendant to use the surname “Patil” in the fragrance business. The Court said the family member’s use was legitimate and tied to the constitutional right to trade.
In Jindal Industries Private Limited v. Suncity Sheets Private Limited (2024), the Delhi High Court allowed the defendant to use “Jindal” as a surname by adding “RNJ” to avoid confusion, meeting the bona fide requirement.
In Goenka Institution of Education & Research v. Anjani Kumar Goenka (2009), the Delhi High Court permitted “Goenka” for an educational institution because the defendant used it honestly without confusing customers.
Limitations and Exceptions
Courts have set limits. In Anil Rathi v. Shri Sharma Steeltech (India) Pvt. Ltd. (2020), the Delhi High Court said licensing a surname to others is not bona fide use under Section 35. The defendant broke a family agreement by licensing the name, so the defense didn’t apply.
In Kirloskar Diesel Recon (P) Ltd. v. Kirloskar Proprietary Ltd., the Bombay High Court ruled that companies can’t use this defense for chosen names, only individuals can.
In Gautam Gambhir v. D.A.P. and Co. (2021), the Delhi High Court allowed a restaurateur named Gautam Gambhir to use his name, as it didn’t confuse customers with the cricketer’s fame.
Implications for Trademark Owners and Users
For trademark owners, Section 35 of Trademark Act means that their rights are nor absolute, especially for common names or descriptions. They must prove bad faith to win infringement cases which encourages careful research before registering trademarks. Section 35 also promotes fair branding because owners can’t block honest competitors.
For users, Section 35 provides protection to use their names or descriptions freely, but they must ensure their use is honest to avoid legal trouble. Businesses with shared surnames should use logos or prefixes to stand out and reduce risks. Overall, Section 35 supports a fair and competitive market, reduces unnecessary lawsuits and protects personal rights.
Summary
Section 35 of Trademark Act, 1999 protects honest use of personal names, business addresses or truthful product descriptions which makes sure that the trademark owners don't block legitimate uses. It balances trademark rights with fair competition, requiring good faith to avoid confusion. The judiciary in cases like Precious Jewels v. Varun Gems, supported the defense for surnames and descriptions when used honestly, but companies can’t claim it for chosen names. Section 35 promotes fair branding, prevents trademark abuse and aligns with global standards which creates a balanced and competitive market.
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Section 35 of Trademark Act: FAQs
Q1. What is Section 36 of the Trademark Act?
Section 36 allows registered trademark owners to stop others from using identical or similar marks that cause confusion.
Q2. What is Section 34 of the Trademark Act?
Section 34 protects someone who used a mark before the registered trademark owner, if used honestly.
Q3. What is the difference between class 35 and class 25 trademarks?
Class 35 covers business services like advertising; Class 25 covers clothing, footwear, and headgear.
Q4. What is Section 37 of the Trademark Act?
Section 37 allows trademark owners to sue for infringement after their mark is officially registered.
Q5. What is trademark 35?
Trademark Class 35 includes services like advertising, business management, and retail, not a specific section.
