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Dispute of a Family Trademark not a Trademark Dispute but a Family Dispute

INTRODUCTION
A trademark, one of the most important Intellectual property incorporates any word, name, image, or any mix, used , or expected to be used, in business to recognize the products of one producer or dealer from merchandise fabricated or sold by others and to show the wellspring of the products. It is an imprint or image which is fit for recognizing the products or administrations of one from those of others.
A trademark can be described as an information umbrella that contributes to resolving information asymmetry and remedying market failure through safeguarding the quality of market information. It not only prevents confusion, but also prevents unauthorised misappropriation while protecting the goodwill of a business.
It continues with the business even after the life of owner of trademark. And such trademarks gets inherited to the family of the owner of trademark.

FAMILY TRADEMARK
The term Family trademark’ signifies the marks used by a person for his family business, where the trademark ownership lies with each member of the family. This provides parallel rights and protects each heir under the doctrine of shared goodwill and common family legacy.
Family trademarks are important since each progressive trademark reinforces the root brand and each progressive trademark has increasingly prompt acknowledgment and uniqueness.
Family trademarks are a gathering of trademarks, meaning thereby:
1. Possessing common characteristics recognized by all,
2. Distinctive and differentiating, and
3. Utilized with the goal that the customers perceives the regular trademark to demonstrate that the trademark proprietor is the basic root of the merchandise or administrations.
DISPUTES PERTAINING TO FAMILY TRADEMARK
Prima facie, the dispute in case of family trademark arises when the business splits up in two or more heirs and often results in disputes regarding the trademark infringement and trademark ownership. Since the Trademarks Act, 1999 stipulates no specific provision in order to deal with said dispute, the Courts in India at various instances have clarified the rules regarding family trademarks.
The High Court of Delhi in Shri Ram Education Trust v. SRF Foundation 2016 SCC OnLine Del 472 observed that:
“16. One member of the family cannot, without something more being shown to the contrary, claim exclusive ownership of the mark. All the heirs of the person who first adopted a mark and put the same to use and earned goodwill and reputation shall, prima facie, have equal rights to adopt and use the same. Something more than mere prior adoption by one of the heirs would have to be shown so as to extinguish the rights of the other heirs.”
Therefore, it may be understood that since trademark is a tool to prevent the business from its competitors, therefore when such a situation arises where family members are separated and each member claims to be the lawful owner of the trademark, then all the family members of the owner of trademark possess lawful right to use the inherited trademark. No single heir or family member has an exclusive right to use such inherited trademark unless any contrary appears.
A similar situation arose in Sri Krishna Sweets Pvt. Ltd. v. Mr. M. Murali (2017) 8 Mad LJ 588 wherein two brothers claimed rights to use the ‘SRI KRISHNA SWEETS’ mark by virtue of inheritance from their father. The Plaintiff argued that the business “Sri Krishna Sweets” was started by him and the lower Court was not right in concluding that the name was a part of common inheritance from the father and both the sons have equal rights over the goodwill. However, the Court did not interfere with the decision of the lower Court and made it clear that in the trade mark dispute between family members, the dispute should not be treated as a trade mark dispute but must be looked as a family dispute.
Furthermore, in the case of M/s Power Control Appliance & Ors. v. Sumeet Machines Pvt. Ltd. (1994) 2 SCC 448, the Court observed that:
“41. It is a settled principle of law relating to trade mark that there can be only one mark, one source and one proprietor. It cannot have two origins. Where, therefore, the first defendant-respondent has proclaimed himself as a rival of the plaintiffs and as joint owner it is impermissible in law. Even then. the joint proprietors must use the trade mark jointly for the benefit of all. It cannot be used in rivalry and in competition with each other.”
In the aforementioned case, the Court held that where distribution of inherited family trademark takes a different route and the family members are rivals of each other, a trademark cannot be used in rivalry and in competition with each other.
Therefore, based on the approach taken by the Courts in case of disputes arising between the family members for using a trademark it is clear position of law that all the heirs have equal rights on the inherited trademark.
WHAT CONSTITUTES A FAMILY
In disputes pertaining to family trademarks, it is pertinent to understand that who are entitled and can be lawful owners of such inherited family trademark. The same was discussed in Kale & Ors. v. Deputy Director of Consolidation and Others 1976 AIR 807 wherein the Court held that the term family has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a resemblance of a claim.
Additionally, the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the society.
Further, any dispute arising out of inherited family trademark must be seen as a family dispute rather than a trademark dispute.
CONCLUSION 
It is not possible to claim sole proprietorship over family trademarks. Accordingly, there are few ways to use the family trademarks with other family members without facing any legal dispute.
The simplest way could be co-existence, non-compete Agreement through which all the family members can use the family trademark simultaneously, for different specifications of goods/services to avoid any conflict. In few exceptional cases, a person may be entitled to use the family trademark in respect of specific goods or services to the exclusion of all other family members.
Prima facie, in order to claim sole and exclusive right over the family trademark, a member has to establish that he is the prior and continuous user of such mark. Also, such user has to establish that the mark by extensive use is only associated with him and no one else.
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