Trademark Infringement in India
Due to the rise of awareness in the people regarding the rights on the intellectual properties, the number of trademarks getting registered is also increasing on a daily basis. One needs to understand and be aware of the consequences that they will face if they try to infringe someone’s intellectual property and the consequences can be of bitter legal nature which will put on liability on the infringer. One needs to be aware of the trademark regulation not only for the above mentioned reason but also to protect his or her own intellect property.
According to the Section 29, Trademark Act, the term “Trademark Infringement” has been described as follows:
- If a person who is not the proprietor or an entity like company or trust etc. along with the proof of registration uses a mark which is similar to a registered trademark or completely uses the mark in his or her business or trading activity, which is already registered as trademark for a registered entity or proprietor. The infringer will be liable for the use of the registered trademark in rendering his or her services and goods to other.
- A trademark which is already registered can be termed as infringed if a person uses the similar mark in his trades and is not registered to do that or have limited access to the same and the reason behind are –
- The identity of the trademark can be confusing as well as the similarity of goods and the services they represent; or
- The registered trademark being similar in nature and similarity and identity of the services and the goods represented by that registered trademark; or
- The similarity of the mark to the registered one can be confusing and the identity of the similarity of the services and the goods which is represented by the registered one; or
- The identity of the mark with the registered one and the identity of the services provided and the goods produced can cause dilemma in the purchasers mind.
- The court will presume that that mark will be a confusing one for the general public if that mark fails according to the clause (c) of the subsection 2 of the trademark act.
- A trademark can be called as infringed if that is being infringed by someone who is not the registered owner of the same or have limited permission to use it but he or she using it in their business and the mark is –
- Identical with the trademark already registered or atleast similar too; or
- Being used for the goods and services which doesn’t represent the type which has been registered for; or
- A reputed brand in India and any use of that mark without proper causes can be assumed as taking advantages illegally and by unfair means and can be presumed as to affect the repute of the trademark which is already popular.
- If a person who is not the legal owner of the business uses the registered trademark as a part of the trade name or the whole of it then it is regarded to be infringed. Even if he or she uses the R as the name of the business as a whole or uses the R for the goods and services of his or her business and the trademark is registered for such products and services only.
- A person is said to be using the mark which is registered trademark of another business when he/ she:
- Affix the mark on the packaging of the goods or on the goods itself; or
- Provides offers to the purchasers to buy the goods and services using the registered mark; or
- Does export and import of the goods using the same mark which is registered already; or
- Uses the mark for the advertisement of his or her products and services.
- When a person, even after knowing that the mark is already registered and he or she doesn’t have the license to use that mark, uses the same for buying and selling of their product and services, advertisement of the same etc. and this is when the trademark infringement occurs.
- A trademark which is registered can be termed as infringed if that mark is used in some advertisement and the advertisement:
- Is against the honest practices in the industry and commercial sector and also if it takes advantages of the same; or
- Is damaging the characteristics of the trademark; or
- Damages or affect or is against the trademark’s repute in the India.
- Words are included in the distinctive characteristics of the trademark and even if someone visually represent them to take undue advantages without being an authorise person, the trademark can be infringed. It is same when someone even verbally represents the trademark.
Remedy for Trademark Infringement
For infringement of the trademark, the court might relieve the convict and that is same for counterfeit of goods and services and activities of that sort. If there is an injunction between the parties, then the infringement relief can be granted. The infringer needs to provide for the damages caused or the profit he or she reaped due to the unethical use of the trademark which is registered not with them and they also need to make up for the infringed labels and other stuffs.
The followings are the infringement reliefs for the registered trademark infringement according to the Section 135, Trademark Act:-
- According to the Section 134, the court may grant relief in case of the injunction and the defendant needs to fulfil the terms and conditions according to the government orders. The convict needs to pay for the detrimental effect of using the trademark in any for whether monetary or physical etc.
- Under subsection (1) of the Trademark Act, the order of the injunction might include an injunction of ex parte type or any order which are kind of interlocutory for the below written facts:
- If the documents are discovered;
- If there is any goods which is infringed and preserved or if the documents along with or without other proofs and evidences are preserved which relates to the legal suit of the infringement;
- If the convicted restrain him from disposing the assets or other factors which affects the plaintiff in an adverse manner and restrain him from recovering his or her charges for the damages or other losses, the court will at the end award the same to the registered user of the trademark only.
- The court will not provide for the relief of the infringement of Rand the damages cause beside the minimal damages, according to the subsection (1) when;
- The infringement of the mark is related to the collective mark or the certification mark and the suit for the infringement of the mark is filed for the same reason;
- The defendant who is convicted according to the suit filed for the infringement of the R, satisfied the court:
- With his argument that he or she weren’t aware of the fact the trademark they are using is a registered one and the user of the same is a registered user of the trademark;
- With the argument that he ceased to use the trademark as soon as he become aware about the registration of the trademark. Thereof, he dint use the trademark for his or goods and services.
- The defendant satisfies that court in a suit of passing off that:
- When he begin to use the mark he had no clue or grounds on which he can rest his thoughts that the mark is a registered one and already in use with the plaintiff; and
- He completely ceased to use the mark as soon as he becomes aware of the fact.