What is Infringement of Trademark in India ?
Read and come along if you want to know about the Infringement of Trademark in India.
After submission of the trademark application, the trademark passes through several checks and the status of the application changes.
When the trademark status is "marked for exam", the examiner checks the mark for everything and generates the report.
So, if the mark is duplicated or copied the reason will be mentioned as an infringement with all the relevant details.
What is the Infringement of a Trademark?
Trademark
infringement, in generic terms, is the unauthorized usage of a mark that is
alike or deceptively similar to a registered trademark.
It means
a breach of rights under the Trademark Act 1999.
Situations
considering a person infringing the trademark:
- The
mark is deceptively similar or identical to the other mark, which has
registration under the Trademark Act, 1999 and has a relation with the
same line of goods and services.
- The
similar or identical mark creates confusion within the general public.
- In
advertising or, packaging the mark is used without any authorization by
the registered trademark.
Types of Infringement of Trademark in India
1. Direct
Infringement
2. Indirect
Infringement
Direct Infringement
It is
defined under section 29, which includes some elements for direct breach:
- Use
by any person who does not have authorization.
- When
the mark is identical or deceptively similar.
- For
only those whose line of goods and services are the same.
Indirect Infringement
Unlike
direct infringement, there is no provision in the Act that deals with indirect
infringement specifically.
It does
not mean that there is no liability for indirect infringement.
The
principle and application of indirect infringement arise from the universal law
principle. It holds accountable not only the principal infringer but also
anyone that abets, induces that direct offender to infringe. Further, there are
two types of indirect infringement:
Vicarious Liability: According to section 114, if a company commits any
offence then except the person who is doing it in good faith will not be given
punishment rest will be liable.
Elements of vicarious liability:
- When
one knows about infringement still performs and contributes.
- When
a person starts generating financial gains from infringement (not in the
case of good faith or zero knowledge of infringement).
Contributory Infringement: Some primary elements for
contributory infringements:
When the
person,
·
- Knows
of the infringement.
- Materially
contributes to the direct infringement.
- Induces
the principal infringer to infringe.
In the
case of contributory infringement, there is no exception as there exists no
chance of the contributory infringer to act in good faith.
Legal Action and Remedies against Infringement of
Trademarks in India
Civil and
criminal action can come if the trademark is infringed.
The party
complaining can file a criminal complaint as the Trademark Act, 1999 considers
infringement as a cognizable offence.
It means
a person can complain to the police, and the prosecution of the infringer can
be done immediately and directly.
A suit
depends upon the registration of a mark.
Remedies which court can give if infringements are successful with
proof:
- Injunction/stay
against the usage of the trademark.
- Handing
over accounts and receipts.
- Appropriate
damages.
- Appointment
of a local commissioner by the respective court for supervision or sealing
of infringing material and accounts.
- The
court can even go up to the extent of giving injunctions and managing the
custom authorities to withhold the infringing material from the
transmission so that the proprietary interest of the owner gets safe.
- An
application under Order 39 rule 1 & 2 of CPC for grant of provisional
or ad interim ex-parte injunction. Interim orders are usually ex-parte or
the following notice.
It was
the best information regarding the Infringement of a Trademark in India. If you
need any more information, you can contact an expert while trademark
registration online.
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