Infringement of a trademark in India is specified as the unauthorised use of a registered brand in a manner that is likely to lead to misunderstanding or deception on the part of customers. It takes place when someone uses a mark that is identical or similar to a trademark that has been registered for goods or services that are same or similar to those that are covered by the registered mark. Infringing on someone else's trademark is a violation of the exclusive rights that have been granted to the owner of the trademark, and it can result in legal penalties.
1. Infringement of a Trademark Occurs When Someone Uses a Registered Trademark Without authorization: Someone commits trademark infringement when they use a registered trademark without the authorization of the trademark owner.
2. Similarity of Goods or Services: In general, trademark infringement refers to goods or services that are either identical to those covered by the registered mark or that are similar to those protected by the registered mark. Infringement may be considered to have occurred when someone uses a mark that is confusingly similar to a registered trademark in a way that makes it likely that consumers would be confused about the nature, quality, or relationship of the two.
3. Protecting Distinctive Elements : An act of trademark infringement may also take place when a mark is utilised in a manner that water down or tarnishes the distinctive qualities or reputation of a famous trademark.
4. Legal Action: Legal action is required for trademark owners to exercise their legal rights, and this can be done by bringing a claim in court for trademark infringement. They have the ability to pursue remedies like as injunctive relief, monetary damages, and the seizure or destruction of products that have been found to be infringing.
5. Defences: Some possible defences to trademark infringement charges include establishing previous rights to the mark, claiming that the mark is generic or descriptive, or demonstrating that the use of the mark is not likely to create confusion.
6. Penalties: Both civil and criminal penalties may be imposed for trademark infringement. Infringing on a registered trademark is considered a civil offence, and the owner of the trademark may seek legal remedies. Infringing on a trademark can also be a criminal offence, which can result in a sentence of imprisonment and/or monetary fines, depending on the specifics of the situation.
7. Trademark Watch: Owners of trademarks have the option of putting in place a trademark watch system, which allows them to monitor and locate any instances of trademark infringement. This requires conducting market research on a consistent basis to look for any unauthorised use of marks that are confusingly similar.
8. Cease & Desist Notice: Before initiating legal action, trademark owners will frequently send a cease and desist letter to the suspected infringement, demanding that they stop using the infringing mark. This is done before the trademark owner would pursue legal action. It's possible that this will result in the parties reaching a compromise or negotiating a new agreement.
9. Protection on an International Scale: Owners of trademarks have the ability to seek protection for their marks in other countries through a variety of different processes, such as registering their trademarks on an international scale or submitting individual applications in each targeted country.
1. Injunction: A person who owns a trademark has the ability to file petition the court for an injunction in order to stop any future unauthorised use of the infringing mark. Depending on the specifics of the case, an injunction may be issued either temporarily (also known as interim) or permanently.
2. Damages: The person responsible for infringing on a trademark may be held liable for financial damages by the trademark's owner. Damages may include not only the actual losses incurred by the owner of the trademark as a direct result of the infringer's actions, but also any profits made by the infringer as a direct result of the infringer's actions.
3. Account of Profits: The court has the authority to enquire the party that engaged in trademark infringement to provide an account of the profits obtained through the unlawful use of the trademark.
4. Delivery and Destruction: The court has the authority to order the delivery of the infringing products as well as their destruction, as well as the destruction of any labels, packing materials, or other materials that contain the infringing mark. This remedy guarantees that the infringing items are withdrawn from the market and prohibits their continued circulation by putting a stop to any further distribution of them.
5. Anton Pillar Orders: The court has the authority to issue an Anton Pillar order, which is more commonly referred to as a "search and seizure" order, under specific circumstances. This enables the owner of the trademark, along with personnel designated by the court, to visit the premises of the infringing party and confiscate items that infringe on the trademark as well as evidence linked to the infringement of the trademark.
6. Infringing Domain Name Dispute Resolution: If the trademark infringement involves a domain name, the owner of the trademark may either file a complaint with the World Intellectual Property Organisation (WIPO) Arbitration and Mediation Centre or begin a domain name dispute resolution procedure under the INDRP (Indian Domain Name Dispute Resolution Policy).
What is a violation of a trademark?
Infringing on a trademark is making unauthorised use of a registered brand in a way that is likely to confuse customers about the source of a product or the origin of a service. Trademark infringement can occur when someone uses a trademark without permission. It is the practise of making use of a mark that is identical to or similar to a registered trademark for products or services that are comparable without the consent of the owner of the registered trademark.
How can I tell whether someone is infringing on my trademark, and what can I do about it?
You can keep an eye out for any unauthorised use of your brand on the market. Be on the lookout for brands that are using logos that are either same or very similar for products that are either related or very similar. Conduct regular searches, keep close tabs on internet platforms, and maintain a state of heightened awareness regarding any potential infractions. To evaluate the circumstances and establish whether or not trademark infringement has taken place, you should confer with a trademark attorney.
What are the repercussions of infringing on someone else's trademark?
Infringing on someone else's trademark can have serious legal repercussions, such as an order to halt the infringing conduct, the payment of damages to the trademark owner, the delivery and destruction of the infringing products, and an accounting of income made from the unauthorised use of the mark. In some circumstances, legal action may also be taken against the violator in the form of criminal proceedings.
Can I write a letter to the infringer demanding that they stop their infringement?
The writing of a letter demanding that the infringing activity be stopped is, in fact, a typical first step in the process of dealing with trademark infringement. In the letter, you tell the person who is infringing on your trademark that they are using it illegally and demand that they stop doing so. It is also possible for it to ask for reimbursement for the damages. To ensure that your cease and desist letter is as effective as possible, consult a trademark attorney.
When does the right to sue for trademark infringement expire, and what is the applicable statute of limitations?
When it comes to trademark infringement lawsuits, the statute of limitations in India is three years from the date of the most recent conduct that was considered to be in violation of the trademark. As soon as you become aware of an infringement, it is in your best interest to take immediate action to protect your legal rights and to collect evidence to support your case.
Is it possible to settle a dispute over the infringement of a trademark by negotiation?
Disputes involving alleged trademark infringement can, on occasion, be settled or negotiated to a satisfactory conclusion. The parties may participate in negotiations in order to arrive at a settlement that is mutually acceptable, such as the infringing activity coming to an end, the mark being modified, or a licencing arrangement being reached. Involving a trademark attorney in the process of negotiation is highly recommended for its direction and guidance.
Should I register my trademark to safeguard against others using it without my permission?
When you register your trademark, you strengthen your legal protection against others using your mark without your permission. It demonstrates that you are the owner of the mark and grants you exclusive rights to use it. The assumption of validity that comes with having a registered trademark makes it much simpler to protect your legal rights and take legal action against those who infringe on them.
What steps should I take if I feel someone is infringing on my trademark?
If you have reason to think that someone is infringing on your trademark, you should speak with a trademark attorney who can walk you through the procedure. They will assist you in evaluating the infringement, collecting evidence, advising you on potential legal remedies, and representing your interests in the process of protecting your trademark rights.
Is it possible for a mark that is similar to another but not the same one to infringe on a registered trademark?
A registered trademark can be infringed upon by a mark that is confusingly similar to it if there is a probability of confusion on the part of customers. Even if the marks are not identical to one another, the fact that they are used on products or services that are comparable to one another or that are linked to one another may constitute trademark infringement.
Using the TM sign, can I prevent others from infringing on my trademark?
Although displaying the trademark sign (TM) might make people aware of your claim of ownership, it does not offer the same level of legal protection that a registered trademark does. If someone infringes on your trademark, you will have greater legal rights and more options for legal recourse if you register it with the relevant authorities.