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Trademark infringement is the violation of the rights of the trademark without the authorization of the trademark owner or any licensor. This Infringement occurs when one party uses a similar trademark to another which creates confusion about the original trademark owned by another party. When it comes to seeing the trademark owner a registered trademark may initiate civil legal proceedings against the infringing party. Trademark infringement in India can result in both civil and criminal penalties because it is considered a "cognizable offense." Trademarks are not required to be registered for civil or criminal proceedings under Indian law.
Worldwide, a trademark is an intellectual property. There are many organizations national as well as international that seek to protect intellectual property such as trademarks. Courts have time and again assumed that the similarity of the two marks and the nature of the goods and services is confusing the mind of the general public. They can take the benefit of enjoying the hard-earned reputation of a registered trademark.
Infringement of trademark in India is defined under Section 29 of the Trademark Act, 1999. Similarly, it is a situation where an unauthorized person uses a trademark that is 'identical' or 'deceptively similar' to a registered trademark. known as infringement.
There are two types of infringement of the trademark.
Any unauthorized use of the exclusive statutory rights of a registered trademark is an infringement. It is a type of infringement that is prima facie applicable to infringement of trademark section 29 of the Trademark Act, 2019, and has the following elements of infringement trademark.
Unauthorized Person : means a person who is not the owner or licensee of the registered trademark.
'Similar' or 'deceptive' : the test for determining whether marks are identical is by determining whether there is a likelihood of confusion among the public. There is a violation if consumers are likely to confuse the two marks.
Registered Trademarks : You can only infringe on registered trademarks. For unregistered trademarks, the common law concept of passing off will apply.
Goods/Services : To establish infringement even the goods/services of the infringer must be identical or similar to the goods represented by the registered trademark.
Indirect trademark infringement is a common law principle that holds not only direct infringers liable but also those who induce the direct infringer to infringe. The indirect breach is also known as a secondary liability which has two categories
A person will be liable for breach of contribution in two situations
1. When a person knows of the violation
2. When a person materially contributes or induces the actual infringer to commit the violation.
3. When a person has knowledge of the violation and contributes to it. Vicarious liability applies to employer-employee relationships and the like. An indirect reference to this is found in Section 114 of the Trademark Act. According to this section, if a company commits an offense under the Act, every person who responds to the company shall be liable. A person who has acted in good faith and without knowledge of the violation. So many trademark infringement cases happened in India.
Overall, indirect infringement occurs when a person induces another person to infringe on a trademark even though they are not directly infringing. Liability for indirect infringement is extremely important with the growth of the e-commerce industry because everyone involved is held accountable.
Thus, any form of infringement of a trademark in India, direct or indirect, may attract liability. To avoid infringement of trademark, you should contact our trademark experts for advice before launching your brand or product.
Both copyright and trademark have separate and distinct uses. Their validity and registration requirement also varies as follows;
Following is the meaning of copyright;
Copyright infringement is the use or reproduction of copyright-protected material without the permission of the copyright holder. Copyright infringement is when the rights granted to the copyright holder, such as the use of the work for a certain period, are being infringed by a third party.
Following is the meaning of the trademark;
A person infringes such a registered trademark if he uses such a registered trademark, such as his trade name or part of his trade name, or his business name or part of a name, in connection with his business dealing in goods or services in respect of which the trademark is registered.
Remedies available in India for infringement of trademark Actions and passing off against infringement are as follows;
Courts of competent jurisdiction may be moved for injunctive relief against infringement and/or passing off.
In addition to civil proceedings, criminal complaints can also be filed against individuals who infringe trademarks.
In addition to civil proceedings, criminal complaints can also be filed against individuals who have infringed trademarks.
Notice of opposition may be filed against trademark applications published in the Trademark Journal. Proceedings for rectification/cancellation of a registered trademark can be initiated before the Registrar of Trademarks.
To prevent the infringement of a trademark it is better to take the help of a trademark infringement lawyer.
Section 30 of the Trade Marks Act, 1999 lays down certain conditions under which a trademark cannot be said to be infringed. Such terms may be used by the alleged infringer as a defense in an infringement trademark claim and thereby absolve him of liability. These terms include;
The following are the penalties for the infringement of a trademark;
A person is deemed to be misapplying a trademark if;
For the above offenses, trademark infringement is a person punishable with imprisonment for a term not less than six months but not exceeding three years and with fine not less than fifty thousand rupees but not exceeding two lakh rupees.
Any person who sells, hires, or exposes for sale, or hires or has in his possession, goods or things for sale, or renders or hires services, to which any unauthorized trademark or false trade description is applied, shall be liable to imprisonment not less than six months and up to three years. A fine ranging from a minimum of fifty thousand to a maximum of two lakh rupees can also be imposed. However, the person will not be punished if he/she proves it,
This trademark infringement of if a registrant falsely represents that a registered trademark is registered in respect of any goods or services, which is not registered, he/she shall be punishable with imprisonment for a term which may extend to three years or with a fine, or with both.
Passing off is known as a common law used to protect and enforce unregistered trademarks in India. Similar to trademark protection, passing off also prevents one person from misrepresenting his goods and services as those of another. The concept of passing off has emerged in recent times. It has expanded its scope from goods to businesses and services. Today it is also applied to many forms of unfair trade and competition.
There are three elements of transcendence known as the classical trinity. These include damage to reputation, misrepresentation, and goodwill. Common law courts have come up with some basic features of passing off which include;
Whenever a case of such passing off is brought before a court of law, it generally goes to the extent of deciding issues like, first, the nature of the mark, second, similarity, third, whether confusion has arisen due to misrepresentation. People's minds and ultimately the plaintiff is damaged, fourth, the nature of the goods, fifth, similarity in nature.
|Basis||Trademark Opposition||Trademark Infringement||Trademark Objection|
|Definition||An opposition is filed after the publishing in the trademark journal.||Unauthorized use of a trademark with goods or services causes confusion and deception of the goods and services.||An application intended to violate rules and laws of trademark registration.|
|Stage of Raising||An opposition is raised after trademark objection.||It is raised by the registry in the examination report issued by the registrar.||An objection is raised in the initial stages.|
|Raised By||An opposition is raised by the third party.||An infringement is done by an unauthorized person who is not the owner of the trademark.||An objection is raised by the examiner of the trademark|
|Time of Filing||The opposition has to be filed within four months from the date of publication.||The opposition has to be filed within four months from the date of publication. It is filed as a suit after the trademark registration in district court.||A reply to an objection is to be filed within thirty days of the examination report.|
|In case of No Response||In case no opposition is filed then the registration certificate will be issued.||The court can provide remedies for a temporary injunction, permanent injunction and damages.||A hearing will be held between the parties.|
|Mode of Communication||The judgement is communicated to the party.||The court gives an order in favour or against the party.||An acceptance is published in the journal.|
|Fees||The applicant must pay the fees at the time of submission of reply to the notice.||The fees depend on the court where the case is filed.||The applicant is not required to pay fees for a reply to an objection.|
|Grounds||The grounds of opposition are if it is identical to the existing trademark and if the nature of the application is made in bad faith.||The grounds for infringement are a confusion of design, product, etc. in the mind of people. The labelling or packaging is without authorization.||The grounds of trademark objection are incorrect details in the form of an application. When the trademark is similar to a registered trademark.|
In addition to registration or incorporation, a business may require other registrations depending on the business activity undertaken. Talk to an Advisor to find out registrations your business may require post registration.
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