Whether it is correct to use registered trademark ® symbol without registration?
Trademark registration involves several stages from application to publication before it is finally registered (see our earlier post on stages involved). It takes upwards of 12 to 18 months for a trademark to attain registration in India, provided that there is no objection or opposition. Symbols such as TM and ® are used by trademark owner to caution general public that the mark is a registered trademark. There is no legal impediment to use TM symbol while a trademark application is pending, but to use a ® symbol one must have a valid registration.
There is common misconception among significant number of population that it is okay to use ® symbol without a valid registration. Trademark applicants tend to use registered trademark ® symbol immediately after filing their application or after once mark is published in the official gazette.
These practices of using the ® symbol or publishing a mark as registered without having a valid registration is prohibited by law and is a punishable offence under Section 107 of the Trade Marks Act 1999, with imprisonment upto three years or with fine, or both.
Therefore, it is unlawful to claim a mark as registered without securing a valid registration. It is equally important for owners of registered trademarks to use ® registered trademark symbol so that the public is adequately cautioned.