Trademark infringement is the violation of the infringer’s unauthorised use of the trademark. It is a common violation that happens for companies or individuals. Let’s get an idea about trademark infringement in India.
Trademark is one of the types of Intellectual property used by companies or individuals. It is a device or label applied to products to identify whether the goods or services are from a particular source and distinguish them from others. A trademark can include any word, phrase, symbol, or design that the organisation or individual uses.
In trademark infringement, competitors copy identical trademarks to mislead customers. These unfair competitors harm the trademark’s reputation by offering poor goods or services by inhibiting businesses from creating innovative technologies that benefit the country and society.
Even though the law protects the registered trademark, there is malicious infringement by competitors without knowing the local legislation.
What is Trademark Infringement?
A trademark infringement occurs when a registered trademark’s exclusive rights are violated without the owner’s or licensees’ consent. Infringement involves using a trademark identical or confusingly identical to a registered trademark owned by another person in connection with goods or services. The registered trademark owner has the right to file a lawsuit against the infringer.
A non-registered trademark cannot be violated, and its owner cannot file an infringement lawsuit. The owner may file a claim on the common law’s definitions of passing off and misrepresentation or under a law forbidding unfair business practices. Trade dress infringement may also give rise to legal action in some jurisdictions. They only need to prove trademark infringement to a registered trademark because the infringing mark is identical or misleadingly similar to the registered mark.
The trademark owner has two remedies for the unauthorised use of a trademark’s imitation by a third party. These remedies include passing off actions in cases of unregistered trademarks and infringement actions in cases of registered trademarks.
Types of Trademark Infringement
Trademark infringement in India is defined by Section 29 of the Trademarks Act, 1999. It means trademark infringement happens when a third party uses a mark identical to or confusingly similar to an already registered trademark without authorisation. The infringement is of two types:
- Direct Infringement
- Indirect Infringement
Direct Infringement
For direct infringement to occur, the following conditions must be satisfied:
- Unauthorised use of the trademark.
- Identical or misleading use of similar marks.
- Registered trademarks according to the act.
- Classification of goods or services.
Indirect Infringement
There is no particular provision for indirect infringement in the act. But it is also an illegal action. The international law principle serves as the basic practice for indirect trademark infringement. It holds liable not only to the primary infringer but also to every person who helps or encourages the primary infringer to violate the registered trademark. There are two categories of indirect trademark infringement such as:
- Vicarious Liability
- Contributory Infringement
Remedies for Trademark Infringement
There are two different types of remedies for trademark infringement in India. The applicant has the option to begin any one or both of the proceedings against the infringer. The following are the two types of remedies:
Criminal Remedy
In the case of criminal proceedings, the following are the remedies that the court may order for the Trademark Infringer:
According to The Trademark Act of 1999, trademark infringement is a cognisable offence, and police are authorised to submit a First Information Report (F.I.R.) and launch an investigation.
Time Limit
There is no specific time boundation to file a suit for trademark infringement.
Jurisdiction
Jurisdiction suit for infringement is described under section 134 of the Trademarks act,1999. No lawsuit for trademark infringement may be filed in a lower court than the district court. The trademark owner can file a suit in the district court under the local limits of the jurisdiction.
Civil Remedy
Civil remedies for trademark infringement include the following:
Profits Account
The infringement will cause harm in the form of lost profits from the goods or services.
Destroying Products
When trademark infringement occurs, it is also possible to order the destruction of goods and services.
Damages
The registered trademark owner shall get compensated for any harm or damages.
Injunctions
If the court passes an interlocutory order, the defendant may not place any assets that could seriously impact the plaintiff and preserve infringing goods and services. An injection is a court order restricting the use of the trademark being violated.
Penalties for Trademark Infringement
In a case of trademark infringement in India or passing off, the court may usually order certain measures, such as a permanent and temporary injunction, damages or an accounting of profits, delivery of the infringing goods for destruction, and legal proceedings costs.
In the case of a criminal action for infringement or passing off, the punishment includes imprisonment of not less than six months but may not exceed three years, as well as a fine that must not be less than 50,000 rupees but may not exceed 2,00,000 rupees.
According to the case’s situation, the courts may also award punitive or exemplary damages to the parties in many situations.
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Engaging in trademark infringement in India might restrict a company’s expansion. Even if the trademark is not registered, most trademark infringement cases take proof of past use into account.
There are different remedies for trade mark infringement in civil and criminal cases. In addition, to direct, there can also be indirect infringement.
It is best to use professional company services to ensure protection for such issues. Be sure to conduct a trademark search before unintentionally using another brand’s intellectual property or somebody infringing your right. An experienced and skilled lawyer specialising in intellectual property will help you win the trademark infringement case. To avoid such Trademark infringement and other intellectual property issues, contact our experienced and skilled attorney from trademarknight.com and safeguard your products or services from fraud.
