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Trademark Infringement

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.

About Trademark Infringement India

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.

Direct Infringement of 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 Infringement of 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

  1. contributory infringement and
  2. vicarious liability.

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.

Trademark Infringement vs Copyright Infringement

Both copyright and trademark have separate and distinct uses. Their validity and registration requirement also varies as follows;

Details of Copyright Meaning

Following is the meaning of copyright;

  • Copyright protection is commonly used to protect literary, musical, dramatic,aesthetic works, cinematograph films and sound recordings.
  • Under copyright law, software, programs, tables, and databases can all be registered as "literary works".
  • Copyright is a legal right in law that gives an exclusive right to the person who created the work
  • Any person holding a copyright must use it fairly following the provisions of the Copyright Act
  • Copyright is given to people who are creative or who write original works. Authors, poets, and artists use copyright to protect their original work
  • However, to obtain a copyright for software, the source code must be submitted to the Copyright Office along with the application.

Infringement 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.

Details of Trademark Meaning

Following is the meaning of the trademark;

  • Individuals, businesses, and nonprofit organizations use trademarks to protect business names, trade names, slogans, and other identifiers.
  • A concept or idea or software cannot be trademarked. But, a unique name given to a concept of any product can be trademarked
  • Many businesses use their trademarks on their product packaging or on the product itself
  • This protects them from others using their goods, trademarks, or logos
  • A person who owns a trademark can take legal action against anyone for using their trademark.

Infringement of 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.

Trademark Infringement How to Prevent in India

Remedies available in India for infringement of trademark Actions and passing off against infringement are as follows;

Civil Action

Courts of competent jurisdiction may be moved for injunctive relief against infringement and/or passing off.

Criminal Proceedings

In addition to civil proceedings, criminal complaints can also be filed against individuals who infringe trademarks.

Criminal Proceedings

In addition to civil proceedings, criminal complaints can also be filed against individuals who have infringed trademarks.

Administrative Remedies

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.

Facts that do Not Infringe On a Trademark in India

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;

  • When any person uses the trademark by bona fide practices in industrial or commercial matters;
  • When such use is not in an attempt to take undue advantage or proves to be detrimental to the distinctive character or reputation of the trademark.
  • Use of Mark for Indication- When any trademark is used to indicate the type, quality, quantity, intended purpose, value, geographical origin, time of production of goods or services rendered, or any other characteristic of goods or services. Whenever the alleged infringement falls within those limitations, it does not constitute a case of trademark infringement.
  • Use of marks outside the scope of registration- When trademarks are registered, there are cases where they have certain conditions and limitations.
  • Implied Consent – Whenever the infringing use of a trademark is in continuation of use permitted by the original owner who has not subsequently removed or destroyed it, the user cannot be said to be infringing.
  • Use of trademarks in connection with parts and accessories
  • Use of trademarks identical to each other

Trademark Infringement Penalties

The following are the penalties for the infringement of a trademark;

Applying for Unauthorized Trademarks

A person is deemed to be misapplying a trademark if;

  • Any trademark falsifies.
  • Misapplied to any trademark goods or services.
  • Makes dispose of or has in his possession any die, block, machine, plate, or another instrument for forgery or to be used for forgery.
  • Applies false description of trade to the goods or services.
  • Applies to any goods for which an indication of the country or place of manufacture or the name and address of the manufacturer or the person for whom the goods are made must be applied. False indication of such country, state, place, name, or address.
  • Tampering with, altering, or removing an indication of origin that has been affixed to any goods to which it is required to be affixed.

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.

2. Selling Goods or Services with Unauthorized Trademarks

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,

  • That is, he/she has taken all reasonable precautions against committing an offense and had no reason to doubt the genuineness of the trademark applied in committing the offense
  • That he/she has furnished all information in his/her power in respect of the person from whom he/she obtained such goods or goods services, at the demand of or on behalf of the plaintiff.
  • That, he/she had otherwise acted innocently.

3. Penalty for False Representation of the Registered Trademark

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.

Details of Passing Off of Trademark

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;

  • Misrepresentation
  • Made by a person in the trade course
  • For potential consumers or final consumers of goods and services
  • Hurting another person's business or goodwill
  • Actual damages to the person by whom the action is brought.

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.

Trademark Infringement Process

Checking Name Availability

Documents Required

  • Copy of Advertisement in trademark
  • Legal proceeding certificate by the registrar
  • Trademark Registration Certificate

Filing of Documents

Filing Suit for Trademark Infringement

  • The suit is filed in the district court containing facts and data of the case.
  • The first hearing of the court and issuing notice to the opposite party after verifying the details and documentation.

Filing of Documents

Types of Trademark Infringement

  • Direct Infringement like similar or deceptive trademark, Trademark used without owner’s permission and Use of a similar trademark in the same class
  • Indirect Infringement like vicarious Infringement and contributory Infringement.

Filing of Documents

Final Judgement

  • The second hearing is conducted with supporting proof and arguments before the court.
  • The court releases the final judgment with remedies or punishments.

Difference Between Trademark Opposition vs Infringement vs Objection

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.

Frequently Asked Questions

What is meant by trademark infringement?
In simple terms, infringement of a trademark is the unauthorized use of a mark similar to a registered trademark or fraudulently. A deceptively similar term here means that when an average consumer sees the mark, it is likely to confuse him/her as to the origin of the goods or services.
What is an example of a trademark infringement?
Examples of infringement of trademark include trademarks that: are identical or deceptively similar to goods or services in the same category; identical or deceptively similar in the same category of goods or services; And so well-known that they have gained recognition beyond the range of their goods or services.
How can a trademark be infringed?
Infringement of Trademark in India is defined under Section 29 of the Trademark Act, 1999. Simply put, infringement is when an unauthorized person uses a trademark that is 'identical' or 'deceptively similar' to a registered trademark.
What are the 8 elements used to determine infringement of a trademark?
The 8 elements used to determine trademark infringement;
1. Strength
2. Similarity
3. Product relation
4. Actual Confusion
5. Purchaser Care
6. Marketing Channels
7. Intent 8. Expansion
How to prove trademark infringement?
The trademark used by the unauthorized person must be either identical to the registered trademark or fraudulently similar
What is Trademark Infringement?
Infringement of Trademark is the unauthorized use of a mark that is identical or deceptively similar to a registered trademark. A deceptively similar term here means that when an average consumer sees the mark, it is likely to confuse him/her as to the origin of the goods or services.
What are the defenses to trademark infringement?
It may be taken as a defense by the defendant that the registration of the mark by the plaintiff is invalid i.e. taking unfair advantage. In such a case, it will not be termed infringement of a trademark.
When Trademark Infringement Occurs?
Generally, infringement of a trademark occurs when all of the following requirements are get applicable;
1. A company or individual uses the trademark owner's trademark (or a similar trademark) without permission.
2. That use is in the field of commerce, meaning that it relates to the sale or promotion of goods or services.
For trademark infringement what are the grounds for it in India?
In India, This is a cognizable offense in which the infringer can face criminal charges as well as with civil charges. Trademarks are not required to be registered for civil or criminal proceedings under Indian law.

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