What is a Well Known Mark

The concept of “well known mark” has been introduced in India and amended Section 2 (zg) defines a well known mark as:
“Well-known trademark, in relation to any goods or services, means a mark which has become so to the substantial segment of the public which uses such goods or receives such services that the use of such mark in relation to other goods or services would likely to be taken as indicating a connection in the course of trade or rendering of services between those goods or services and a person using the mark in relation to the first mentioned goods or services.”
Consideration for determining a “well known mark”:
While determining whether the mark is well-known mark, the registrar will take in to consideration the following:
(a) The knowledge or recognition of the alleged well known mark in the relevant section of the public including knowledge obtained as a result of promotion of the trademark.
b) The duration, extent and geographical area of any use for that trademark.
c) The duration, extent and geographical area for any promotion of the trademark including advertising or publicity and presentation at fairs or exhibition of the goods or services in which the trademark appears.
(d) The duration and geographical area of any registration of any publication for registration of that trademark under this Act to the extent that they reflect the use or recognition of that trademark.
(e) The record of successful enforcements of the rights in that trademark, in particular the extent to which the trademark has been recognized as a well known trademark by any Court or Registrar under that record.
Whereas a trademark has been determined to be well known in at least one relevant section of the public in India by any court or Registrar, the Registrar shall consider that trademark as a well known trademark for registration under this Act.
“Relevant section of Public” may be actual or potential consumers of, persons involved in channels of distribution of or business circles dealing with the type of goods or services to which the mark is applied.
The Registrar is not required to consider the following facts while determining a well known trademark.
a) The Trademark has been used in India
b) The Trademark has been registered
c) The application for registration of the Trademark has been filed in India.
d) The trademark is well known in or has been registered in, or in respect of which an application for registration has been filed in any jurisdiction other than India or
e) The trademark is well known to the public at large in India.