What is a Trademark?
A trademark is usually a unique symbol, which is used by any person or firm or organization, or any other legal entity to identify the source of their goods or services towards consumers and to distinguish their goods or services from other entities. A designated with the trademark of R symbol (®) is designated when a product is registered.
What is Trademark Infringement?
According to Section 29 of the Trade Marks Act 1999, it states the infringement of a trademark. Basically, when the exclusive rights of the possessor of the registered Trademark are infringed, it is alleged to be an infringement of the Trademark. The registration of a trademark gives exclusive rights to the brand name to the applicant.
The trademark registration certificate gives exclusive rights to the owner to use the brand name for their business activity which falls under the class in which it’s registered. If a third party makes use of the brand name in course of trade without taking permission of the possessor, it is an infringement of the right of the owner and is termed as the infringement of Trademark.
The trademark infringement includes using closely or misleadingly identical brand names or logos for related products and services; and using a mark that makes a false impression or confusion with the registered trademark.
Indian Trademark Law on Infringement:
The lawful protection of a trademark is directed by the Controller General of Patents, Designs and Trade Marks, a government agency that reports to the Department of Industrial Policy and Promotion (DIPP), under the Ministry of Commerce and Industry.
What are the Remedies for Trademark Infringement?
The possessor of the Registered Trademark could start legal proceedings against the violator who had infringed the registered trademark by stating the unfair business actions.
In India, Section 29 and Section 30 of the Trade Marks Act, 1999 states the remedies for infringement of trademarks.
There are two categories of remedies that are available to the possessor of the trademark against the unauthorized usage of its restriction by the third party. The Trade Marks Act 1999 shields the trademark with civil and criminal remedies. Civil proceedings could be started by the owner of the trademark before the District Court in whose jurisdiction the owner exists.
Civil Remedies for Trademark Infringement are available which consists of:
1.Injunction:
An injunction is stated as stopping one individual from carrying out particular activity or action through the judicial procedure. Regarding trademark infringement, it is limiting an individual from unauthorized usage of the trademark. By means of a temporary or permanent stay, the Court allows protection towards the trademark holder.
2.Damages:
Damages state towards the recovery of loss suffered by the trademark holder through the trademark infringement. The fiscal value of financial loss or brand damage is recovered under this remedy. The sum of damages would be allowed by the court after considering the actual as well as the expected loss of the owner because of infringement.
3.Custody of infringing materials:
This type of remedy proposes that the Court might ask the violator to deliver all the products or products that are categorized with the brand name. In such cases, the Court might direct the authorities to withhold the associated materials accounts and destruct all such products. Where the trademark relates towards services, that is if a Service Mark has been infringed; the order might be passed to stop the provision of the services instantly by the violator.
Criminal remedies
The Trade Marks Act,1999 also provides several provisions that could be counted as a criminal remedy for the infringement of the trademark. The following are:
Sections 103 of the Act states the criminal remedy for the infringement of the trademark of any person or business which specifies a period of 6 months of imprisonment which could be extended till a time frame of 3 years for infringing trademark rights.
Section 104 of the Act also states penalties that need to be granted as a sanction against an infringement. The section lays down a penalty of fifty thousand rupees which could be increased to an extent of two lakhs in case any person is found to contravene the trademark rights.
Also, the punishment of trademark infringement is also stated in Section 105 of the same Act.
A seizure of powers of the individual responsible for infringing could be carried out as a criminal remedy for an effectual adaptation towards the above provisions. This process carried out by police is subjected to rational grounds of proving the infringement only.
Administrative Remedies
Along with civil and criminal remedies of trademark infringement, administrative remedies are also available for trademark infringement. The administrative remedies which are available are:
Opposing a trademark that is identical to the original mark, could be carried out under Sections 9(1) or 11 of the Trade Marks Act, 1999. If such a condition arises, questionings could be done through the examiner upon the trademark registration. A trademark opposition is filed by a third party, in that way opposing the prevailing trademark in the trademark journal after the completion of its registration process. One another way of carrying out administrative remedy is by means of correcting the trademark which has been already registered. In this way, it could remove the confusion of trademarks. Since this type of remedy is administrative in nature, it is carried out through keeping a check in the trade activity of the products that stand an infringed trademark. Therefore, import and export of goods that are termed with a trademark that is deceitful by nature are limited with the intention of avoiding hesitation.
Conclusion:
The infringement of trademark affects the brand value as well as the market share of the business of the owner. Along with direct infringement of trademark, there could be an indirect infringement as well. However, there are no provisions related to indirect infringement, responsibilities exist abiding through the principle of universal law. Therefore, awareness is very important amongst individuals to avoid any kind of trademark infringement on their products and resolve the same speedily with legal help and direction.
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