Trademark Infringement: What You Need to Know

What is trademark infringement Types and Penalties

India, being a mixed economy and has a various industry that function on free market basis. Within the market system, competition is fierce. To flourish in the free market, each business must create brand awareness and brand value. The only way this is frequently accomplished is through trademarks. 

The need for trademarks is sometimes viewed as a three-pronged strategy to representing products or services by: 

  • Assisting customers in recognizing the source 
  • Assisting consumers in determining the standard 
  • Assisting consumers in making a purchase choice Once a trademark has acquired such value, it is critical to protect it from misuse and infringement by others.

What is Trademark Infringement?

Section 29 for Trademark Infringement under The Trademarks Act, 1999 is the law that governs trademark protection in India. The Act establishes the standards for trademark registration, protection, and infringement penalties. Trademarks are treated as property all around the world. Many organizations, both worldwide and national, work to protect intellectual property such as trademarks. 

In India, the Indian Patent and Trademark Office Database is managed by the Controller General of Patents, Designs, and Trademarks. When a typical customer looks at the mark, he or she is likely to be confused about the origin of the items or services.

Different Types of Trademark Infringement

When investigating trademark infringement, it is important to understand that there are two types of infringement: blatant infringement Section 29 of the Act defines direct infringement. There are a few conditions that must be followed for an instant breach to occur, and they are as follows:

  • Unauthorized use: this implies that a trademark violation occurs only when the mark is used by someone who is not authorized by the registered trademark proprietor. Infringement does not occur if the mark is used with the permission of the registered trademark proprietor.
  • Identical or deceptively similar: The unauthorized person’s trademark must be identical or deceptively similar to the registered trademark. The word ‘deceptively similar’ here simply indicates that the average consumer ‘may’ be confused between the marks and should treat them as identical. 

The operational term here is ‘may’; it simply needs to be demonstrated that this is frequently an opportunity and does not require proof of really occurring.

  • Registered trademark: The Act exclusively protects trademarks that have been registered with India’s trademark registrar. The common law of passing off is used to settle disputes when an unregistered mark is violated. It is a tort law that is employed when another person’s or group of people’s actions cause hurt or damage to their goodwill.
  • Product or service class: For trademark infringement, the unauthorized use of the mark must be employed for the propagation of items or services that fall into an equivalent class of the registered brand.

Unintentional violation Unlike direct infringement

there is no particular provision in the Act dealing with indirect infringement. This does not absolve the offender of liability for indirect infringement. The principle of universal law supports the concept and application of indirect violation. It holds accountable not just the principal infringement, but also anybody who assists or induces that prime infringer to infringe. Indirect infringement can be classified into two types:

  • Vicarious liability: In accordance with Section 114 of the Act, if a corporation commits an offence under this Act, the entire corporation is accountable. As a result, everyone responsible for the company will be held accountable for indirect infringement, save for a person who behaved honestly and without knowledge of the infringement. When the person has control over the actions of the major infringer.

when the person is aware of the infringement and contributes to it; and when the person stands to profit financially from the infringement. The only exemption to a company’s vicarious responsibility for infringement is where the corporation acted in good faith and had no knowledge of the infringement.

  • Contributory infringement: Contributory infringement consists of only three key elements: – When the person is aware of the infringement – When the person materially contributes to the direct infringement – When the person induces the principal infringer to commit infringement There is no exception in the case of contributory infringement because the contributory infringer has no chance of acting honestly.

Trademark Infringement Penalties

In India, trademark infringement is a punishable violation, which means that the offender may face criminal prosecution in addition to civil charges. As previously stated, this is frequently due to the common law idea of passing off. In the event of trademark infringement, the court may grant the following remedies:

  1. Interim injunction
  2. Injunction for life
  3. Compensation
  4. Profit account (damages up to the amount of profits made from the violation)
  5. Product destruction using the infringing mark
  6. Legal fees and costs

In the instance of a criminal process, the following punishment is imposed by the court:

  1. Imprisonment for a minimum of six months and a maximum of three years
  2. A fine of Rs 50,000, which will be increased to Rs 2 lakh.

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