2023-06-26 11:40:53

Trademark Infringement In India

Introduction

A Trademark, also known as a ‘Trade mark’ or ‘Trade-mark’ is a sort of intellectual property that consists of a recognizable design, expression, or sign that is associated with the service or product rendered from a specific identity or source the trademark helps in distinguishing them from others. The authority for the respective trademark can be an individual entity, legal, or business entity. A trademark may be put on anything that is meant to be rendering service to the people at large like a product, or any marketing source that helps people distinguish them from others.

In India, to thrive in any business, one has to have a unique identity as India recognizes the high level of competition and high-end services in any field and is an open market that allows the consumers to opt for any sort of service according to their own needs. For that purpose, any brand of any business needs its own distinguished identity to compete in the market in order to be successful. The only way to establish a distinguished identity is via trademarks.

MEANING

For the protection of trademarks, we in India have The Trademarks Act, 1999. The Act contains the rules regarding the registration processes, protection of the trademarks, and penalties in case of the infringement of trademarks. There are various organizations (international and national), that work towards the protection of the trademark rights and other intellectual properties. In a layman’s language, Trademark infringement is the illegal usage of a sign or mark that is identical to a registered trademark that is likely to confuse the consumer about the origin of the services or goods.

In India, we are having The Indian Patent Office administered by the Controller General of Patents, Designs, and Trademarks which is an Indian organization that deals with the protection of trademarks and specify rules for the same in India.

TYPES

There are two (2) sorts of Trademark Infringement:

DIRECT AND INDIRECT

Direct Infringement:

Direct infringement is explained and defined under Section 29 of the Trademark Act, 1999. Essential elements required for a direct breach are as follows:

Uncanny similarity or deceptively similar: If the trademark used by any person is identical to that of the registered trademark or deceptively similar to it, it will be considered a direct infringement. It results in making the consumer confused between the original and the identical one.
A trademark that is Registered: This Act protects those trademarks that have been registered with the trademark registry of India. In other cases of an unregistered mark, the common law of passing off is used in settling the disputes.
Illegal Usage by person: Violation of a trademark only happens when it is illegally used by a person who is not the registered owner of the trademark.
Identical Products or Goods: For infringement, the goods/ services need to be identical to the goods that the registered Trademark represents.

Indirect Infringement

There are two sorts of indirect infringement:

Vicarious liability:

According to Section 114 of the Act, if a company commits an offense under this Act, then the whole company will be held liable. The exception to vicarious liability of a company for infringement is when the company acted in good faith & was unaware of the infringement.

Contributory infringement:

There are 3 basic elements to contributory infringement. These are:

1) When the person knows of the infringement.

2) When the person materially contributes to the direct infringement.

3) When the person induces the person to commit infringement, there is no exception as there exists no chance to act in good faith.

LEGAL REMEDIES

REMEDIES UNDER CIVIL LAW:

A case under Section 134 of the Trademark Act, 1999, can be filed in the District Court in the case of Infringement of the Trademark. The jurisdiction of the district court lies where the plaintiff is situated or the place where the cause of action arose. The court has the option to pass the following orders:

An Injunction under Order XXXIX of CPC (Civil Procedure Code) or under Section 36-42 of the Specific Relief Act
Damages or Accounts of Profits
Destruction or erasure of infringing labels

REMEDIES UNDER CRIMINAL LAW:

In the case of Infringement of Trademark, the victim can initiate a proceeding against an unknown person as well under sections 93 and 94 of the Cr. P.C person
An FIR under Section 154 of the CrPC (Criminal Procedure Code). In case the police officer refuses, the complaint can be filed under Section 156(3) of CrPC before the Magistrate.
The investigation after an F.I.R or order by the magistrate can include the seizure and search of the goods and services with the infringed trademark.