Chapter IV - Effect of Registration
Section 34
Section 34: Protection of continuous prior use
Continuous prior use can protect a trader against a later registered proprietor or registered user.
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Need advice on Section 34?
This article is for general information. Refer to the Trade Marks Act, 1999 official text for the official provisions. If you need professional advice for your situation, contact Bizeneed.
Statutory text
Bare law
Nothing in this Act shall entitle the proprietor or a registered user of registered trade mark to interfere with or restrain the use by any person of a trade mark 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 date prior—
(a) to the use of the first-mentioned trade mark in relation to those goods or services by the proprietor or a predecessor in title of his; or
(b) to the date of registration of the first-mentioned trade mark in respect of those goods or services in the name of the proprietor or a predecessor in title of his; whichever is the earlier, and the Registrar shall not refuse (on such use being proved) to register the second mentioned trade mark by reason only of the registration of the first-mentioned trade mark.
Rule and business relevance
The protected use must begin before the earlier of the first-mentioned mark’s use and registration dates, for the relevant goods or services. Proven use also prevents refusal based only on the other registration.
Limits and related provisions
Do not assume any earlier isolated sale proves continuous prior use, or that the protection automatically grants registration against every other objection. Compare both relevant dates.
Hypothetical business example
Hypothetical example: A local business documents continuous brand use predating both another proprietor’s first use and registration. It assesses the statutory prior-use protection and any registration application.
Practical decision flow
Establish continuous use by the claimant or predecessor in title.
Compare it with both competing use and registration dates, taking the earlier.
Match the goods or services and preserve dated trade records.
Applying the Act and current procedure
Read the statutory rule together with the applicable Trade Marks Rules, current Registry directions and the facts of the particular mark. Forms, fees and procedural requirements should be checked against their current official source before filing.
Practical checklist
Do
- Establish continuous use by the claimant or predecessor in title.
- Compare it with both competing use and registration dates, taking the earlier.
- Match the goods or services and preserve dated trade records.
Avoid
- Do not assume any earlier isolated sale proves continuous prior use, or that the protection automatically grants registration against every other objection. Compare both relevant dates.
Glossary
- Vested prior-use right
- The continuous earlier use protected by this provision.
- Earlier-of test
- The comparison with whichever competing date is earlier: use or registration.
Frequently asked questions
Is the registration date the only comparator?
No. The section uses the earlier of the competing use and registration dates.
Does any one historic invoice settle continuous use?
It is evidence, but continuity and the full factual position must be established.
Does this guarantee registration despite all other objections?
No. It prevents refusal by reason only of the specified other registration when the use is proved.
Need help applying this provision to your situation?
Contact BizeneedLast updated 10 October 2026