TRADEMARK INFRINGEMENT: Protection Through Fake Branding

TRADEMARK INFRINGEMENT: Protection Through Fake Branding

Any law does not define Trademark Infringement. But, in simple terms, Trademark Infringement means the unauthorized usage of a mark that is identical or deceptively similar to a registered trademark.

“Deceptively Similar” means if an average consumer looks at the mark, they get confused about the origin of such goods or services.



Direct Trademark Infringement is defined under section 29 of the Trademarks Act, 1999

Use by an Authorized Person: - This means trademark violation happens when the mark is used by a person not authorized by the registered holder. You can also check out some of the trademark infringement examples from India.

Identical or deceptively similar: Any person uses an identical or deceptively similar mark. “Deceptively Similar” means when the consumer cannot identify the origin of goods. Here “may” means if there is a chance of infringement and it does not require proof of actually happening.

Registered Trademark: - Protection against infringement only extends to the registered Trademark and not the unregistered Trademark. Unregistered trademark violation can seek protection under the common law of passing off.

Class of goods or services: - The unauthorized use of Trademark for goods or services should fall under the same class of registered trademarks.



Unlike Direct & Indirect Trademark Infringement is not governed by any provisions of the Act specifically.

Vicarious Liability: - According to section 114 of the Trademarks Act, 1999, if a company commits an offence under this Act, then the whole company will be liable. This means that the company and everyone involved will be liable.

Elements of Vicarious Liability are:

  • When a person can control the activities of the principal infringer
  • When a person knows of infringement and contributes to it
  • When a person derives financial gain from such infringement

The only exception is when the company acted in good faith and had no idea of trademark infringement.

Contributory Trademark Infringement: - Three Basic Element

  • The person knows about infringement
  • Person materially contributes to direct infringement
  • A person induces the principal infringer to omit Trademark Infringement No exception.

In India, trademark infringement is a cognizable offence, meaning the infringer may also face criminal and civil charges. It is also not required for India Trademark Law should be registered as proceedings can be done under the common law of passing off.

US Report on IPR Infringement in INDIA

India remains on the Priority Watch List in 2022.

Ongoing Challenges and Concerns of Trademark Infringement

Ongoing Challenges and Concerns of Trademark Infringement

India’s enforcement of IP in the online sphere has gradually improved, but there continues to be a lack of progress on long-standing IP concerns raised in prior Special 301 Reports. India remains one of the world’s most challenging major economies concerning the protection and enforcement of IP.

A patent is also a major concern in India. The pre and post-grant oppositions, long waiting and excessive reporting requirements. Stakeholders continue to express their concerns over vagueness in interpreting Indian Patent law.

India has high customs duties on IP-intensive products such as pharmaceuticals, medical devices, solar energy equipment etc.

Despite some progress made online, it remains inadequate on India’s overall IP enforcement is. Weak enforcement of IP by the courts and police officers, lack of familiarity with investigating techniques and continued absence of a centralized IP enforcement agency, combined with a failure to coordinate actions on both national and state levels.

India remains home to several markets that facilitate counterfeiting and piracy, as identified in the 2021 Notorious Market List. United States continues to encourage India the adoption of National –Level enforcement task force for IP crimes. It also continues to urge India to join the Singapore Treaty on the law of Trademarks.

India’s 2016 Nation Intellectual Property Right Policy, which is past 5 years’ review, identified trade secrets as an important area of study for future policy development... However, as of 2022, no civil or criminal law has been identified in India for specifically addressing the protection of trade secrets.

Copyright holders continue to report high levels of piracy, particularly online.

The 2015 passage of the Commercial Courts Acts, highlighted in previous Special 301 Reports, provided an opportunity for reduced delay and increased expertise in judicial IP. Still, only a few courts have benefitted under this Act. India’s April 2021 decision to abolish the Intellectual Property Appellate Board (IPAB) and redirects matters to courts has created uncertainty around the adjudication of IP case.

Developments, Including Progress and Actions, Taken

Developments, Including Progress and Actions, Taken

India’s accession to the World Intellectual Property Organization (WIPO) Performances and Phonograms Treaty and WIPO Copyright Treaty, collectively known as the WIPO Internet Treaties, in 2018 and the Nice Agreement in 2019 were positive steps, as was India’s commitment to the Unites States-India Trade Policy Forum (TPF) in November 2021 to comply with the WIPO Internet Treaties.

India’s proposed Cinematograph (Amendment) Bill, 2021, containing provisions to criminalize unauthorized camcording of films’ continues to await Parliament’s approval.

The Cell for Intellectual Property Rights Promotion and Management (CIPAM) continues to promote IP awareness, Commercialization and enforcement throughout India.

In December 2020, Unites States Patent and Trademark Office (USPTO) and DPIIT signed a new Memorandum of Understanding (MOU) relating to IP technical cooperation mechanisms, and DPIIT and USPTO are in the process of entering into a biennial work plan to guide implementation of the MOU.

Online XBRL is the one who help you to get your Trademark Infringement. For any query connect with us.

Frequently Asked Questions

Dispute over a succession of a trademark right, in case of the original owner, dies, Dispute between the proprietor of trademark right and the holder of the right to use, Dispute arising from a 3rd party’s infringement of a trademark right.

The unauthorized usage of a mark that’s identical to a registered trademark, when a layman/non-professional customer looks at the mark it’s creates confusion regarding the origin of the goods and services.

The first step to research is that name, logo, or domain name is not already a trademark Register your trademark and used it Always monitor/cover your trademark Use the Litigation process as soon as possible in case of infringement of the trademark.

The suit can be filed against any entity or individual that is found to be using or infringing a trademark.

A trademark infringement case can file in a district court where the person constituting the suit for infringement resides or carries on business.

  • Louis Vuitton v. Louis Vuiton Dak
  • Zara Food vs Zara Fashion
  • Academy Awards v. GoDaddy
  • The Coca-Cola Company v. Bisleri International Private Limited.