Updated on May 14, 2022 01:13:26 PM
Trademark Infringement is a violation of trademark owners' rights when used without their consent or authorization. Infringement means when one party uses a similar trademark, which could lead to public confusion about the product or service. The trademark owner has the right to file a case against the infringer for their trademark.
How can a case for trademark infringement be filed, what is its fee and procedure, and what punishment is defined under the law for such offences? We will explain all these questions in detail along with all those cases that also consider under trademark infringement.
Infringement of trademark means using a registered trademark on/with products and services in a manner that leads to confusion and deception about its source by any unauthorized person commonly called infringer.
Trademark is a word, symbol, sign, a phrase that differentiates its product and service from others of the same kind. A trademark reflects the source and symbolizes a mark for quality and trust among the public. Trademark infringement happens when an infringer uses it without the permission of its owner for commerce or to deceive the common public and create confusion with the registered trademark. It results in a loss of finance and goodwill to the business.
For example, the bitten apple logo is the registered trademark of the company, Apple. When another company uses a similar logo on their products and service, it is considered trademark infringement. Either be used on the same type of products (electronics) or even on different ones like clothing. Then also, it would be an infringement if it confuse the public, and they might consider purchasing the cloth under the impression of being sold out by Apple.
There is strict punishment for those infringers under the law. But before that, we should know about the types of infringement in India. Trademark infringement can be done in two ways. Let's discuss it.
Section 29 of the Trademark Act, 1999 lays down the law related to direct infringement of the trademark. As per the law, direct infringement has been defined as in the following cases:
Infringement of trademark not only happens when an unauthorized person uses your registered trademark without your permission but also some special cases fall to this category. Trademark Infringement can happen in any of the three cases of trademark registration:
Situation: When you have a registered trademark, and someone infringes it. Infringement can be direct or indirect. You already have an idea about direct and indirect infringement, as discussed above.
Remedy: In this case, you can file a suit for trademark infringement in the district court. The process for filing such a suit will be discussed in detail later on in the topic.
Situation: When you use your trademark for a long time but have not registered it, now someone else either uses it or tries to register it.
Remedy: In case someone tries to register it, then you can file Trademark Opposition against it. If neither you nor the party tries to register it, you should first apply for its registration and then file a suit against the other party (infringer).
Situation: When someone has registered a trademark that belongs to you. It means you have been using your trademark for a long time but now a second party has it registered under their name.
Remedy: You can file for trademark rectification to the registrar.
In India, trademark Infringement is a cognizable offence (cases where police have authority to arrest without a warrant). The infringer can face civil as well as criminal charges for the same.
{Note: The infringer will also be accountable for punishment in case the trademark they use is not yet registered.}
Before applying to trademark infringement, make sure to have the following documents with you:
The first step in case of your infringement of a trademark is to file the application against the use of your trademark in the district court. The application must contain all the important facts and data of your case.
On receiving the suit, the judge first observes the suit and issues notice to the opposite party for a second hearing after verifying all the details and documentation.
The court fee must be submitted before the date of the second hearing.
In the second hearing, both the parties contest their case and provide suitable arguments and proof supporting their claims. If the court is satisfied with its arguments, it may release a final judgment or give a date for the next hearing in the court.
After the argument of both parties, the court releases its final judgment. The remedies or punishment are decided by the court. The punishment in infringement cases is already discussed above in detail.
{Note: Always remember that before proceeding with the suit, send notice to the infringer and if no response is received from their end then only initiate the proceedings in the court.}
It would be best if you always chose your trademark with certain things in mind. Those things include a unique name, proper trademark research, appropriate class, the existence of no such or similar trademark in the class, and others.
The first and foremost step after deciding on the appropriate trademark is registering it. By registering a trademark, you can gain all legal rights of it along with other benefits.These include brand recognition, legal protection, monetary benefits, along with brand value.
The best way to avoid trademark infringement is to obtain the owner's authorization before its usage.
If the trademark is being used for any fair purpose other than that for commercial, it also doesn't count as trademark infringement. Fair use includes news, commentary, criticism, parody, a comparative advertisement with others, and non-commercial use.
With Litem, you can get advocates who are well experienced to deal with intellectual property-related matters. The years of experience and expertise can very well guide you with your case. The process to get in touch with an advocate is quite simple with us:
Fill the form or Call us at 9289044667 . Provide us with details and documentation related to the case.
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