Trademark Infringement
You all are well aware that the vibrant market scenario of India is witnessing immense growth in which trademark plays a very important role in identifying and establishing any brand. A trademark is defined as a specific symbol or logo in the market places and its use helps in distinguishing the goods and services of one brand from others. It includes many types of logos, names, designs, even some sounds to represent a brand.
However, sometimes trademark infringement in India is also seen and this happens when any third party related individuals use any such signs, logo or design which is already registered with the trademark registrar without taking the permission of the trademark owner.
This article written by Blackty Legal Services India LLP will provide you with detailed information about all the types of trademark infringement and penalties.
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Trademark Infringement in India
Trademark infringement in India includes unauthorised use of a similar symbol or design. Trademark infringement in India involves unauthorised use of similar symbols or designs, due to which the likelihood of confusion among consumers about the origin of services and goods can increase to very extreme levels.
Types of Trademark Infringement
- Direct Infringement
Direct infringement situations arise when third-party persons refuse to use a similar mark or design in their brand, which is already registered with the trademark registrar, thereby creating confusion among the consumers and customers, and the possibility of getting diverted increases. To establish direct infringement, you will have to follow the instructions mentioned below:
These infringing designs or symbols must be used only in the course of your business.
The infringing mark must be somewhat similar to the registered trademark.
It is very important that the application of the infringing rule relates only to the goods and services covered by the trademark registration.
The use of infringing marks should cause confusion and diversion among consumers.
- Indirect Infringement
Indirect infringement, also known as partial infringement, occurs when a large organization or individual helps or contributes to the direct violation of another party’s constitution. Situations like indirect infringement can arise in different ways for example supplying services or providing help in goods and services.
Indirect infringement is not very well and fully explained in the Trademark Act 1999 but can be fairly inferred from the general principles of contributory liability.
Critical Factors in Determining Trademark Infringement
Only by considering the key factors can it be determined whether a trademark has been infringed or not. Considering all these factors is very helpful to the courts and authorities in assessing the confusion.
- Similarity of Marks
The degree of similarity between the infringing mark and the registered trademark is seen as a significant factor. All courts in India assess ideological similarity to determine whether all consumers are being misled or not.
- Similarity of Goods or Services
The nature of the goods or services associated with marks has been examined in great detail. If all the goods and services it provides are related to the same firm or industry, then there is a higher chance of being found infringing.
- Distinctiveness of the Trademark
Stronger trademark protection is often provided to describe symbols that are specific or generic. And if the document is found to be more specific, the chances of a violation occurring increase significantly.
- Evidence of Actual Confusion
Evidence of actual confusion among consumers can significantly bolster a claim of trademark infringement. This can include instances where consumers have mistakenly purchased or inquired about the infringing product, thinking it was associated with the trademark owner.
- Intention of the Infringer
A proper investigation is carried out into what the infringer intended to do to the third party individuals behind using it. If it is proved that the case was instituted with the intention of taking advantage of the popularity of the infringing trademark, it significantly strengthens the case for infringement.
Penalties for Trademark Infringement in India
As mentioned earlier, civil and criminal remedies are applicable on trademark infringement in India with Section 29 of the Trade Mark Act, 1999 providing various reliefs to the trade mark owner such as injunction, damages and account of profits.
- Civil Remedies
- Injunction: A court can grant an injunction to prevent an infringer from reusing the infringing material, and is seen as the most common remedy in trademark infringement cases.
- Damages or Account of Profits: Whatever loss the trademark owner has suffered due to infringement can be awarded as damages. Alternatively, the court may order the person infringing to pay the trademark owner a specific portion of the profits derived from the unauthorized use of the mark.
- Delivery Up and Destruction of Infringing Goods: In a lawsuit, the infringer is ordered to pay or destroy all infringing goods and services.
- Criminal Penalties
Under the Trademarks Act of 1999, there is also a provision for punishment for trademark infringement. The main reason behind giving all these is to ban infringing people and protect all the legal rights of the trademark.
- Imprisonment and Fine: Offenders who commit trademark infringement can be jailed for 6 months to 3 years and a fine of Rs 50,000 to Rs 2 lakh can also be imposed and if you commit such a crime repeatedly, your punishment can also be extended.
- Search and Seizure: Police officers are authorized to carry out a search and apprehend any articles in the course of the offense, including the infringing products, documents, and tools.
Conclusion
In conclusion, trademark infringement in India poses significant risks to brand integrity and business reputation. It is vital to promptly address any violations through legal channels to protect intellectual property rights.
For comprehensive legal support and expert advice, consider consulting Blacktie Legal Services India LLP, which specializes in handling trademark infringement cases effectively and efficiently.
What we can offer ?
When dealing with trademark infringement, blacktie can offer a range of services to protect your intellectual property rights:
Pre-Litigation Services
- Trademark Search and Watch: Identifying potential infringement risks by monitoring the marketplace for similar trademarks.
- Infringement Analysis: Evaluating the extent of infringement and gathering evidence to support a claim.
- Cease and Desist Letters: Drafting and sending cease and desist letters to infringers.
- Negotiation and Settlement: Attempting to resolve the issue amicably through negotiation.
Litigation Services
- Legal Counsel: Providing legal advice and representation throughout the legal process.
- Pleading Drafting: Preparing and filing necessary legal documents (plaints, counter-claims, etc.).
- Evidence Collection: Gathering and organizing evidence to support the infringement claim.
- Discovery and Interrogatories: Conducting discovery and responding to interrogatories.
- Expert Witness Testimony: Arranging expert witnesses to provide testimony in support of the case.
- Litigation Strategy: Developing and implementing a litigation strategy to maximize the chances of success.
- Court Appearances: Representing the client in court proceedings.
Post-Litigation Services
- Enforcement of Judgments: Assisting in enforcing court orders and recovering damages.
- Anti-Counterfeiting Measures: Implementing measures to prevent future infringement.
- Trademark Monitoring: Continuously monitoring the marketplace for new infringement attempts.